Law Of Crimes-LOC- PDF

LAW OF LAW OF CRIMES CRIMES THIRD SEMESTER | ACADEMIC YEAR 2024 - 2025 | PROF. DR. ANJANI SINGH TOMAR PORTIONS There are no notes for the highlighted portions here!!!!!!...

LAW OF LAW OF CRIMES CRIMES THIRD SEMESTER | ACADEMIC YEAR 2024 - 2025 | PROF. DR. ANJANI SINGH TOMAR PORTIONS There are no notes for the highlighted portions here!!!!!! CHAPTER 1 SEC 2 Sub section - 3 8 15 27 36 4 9 16 28 37 5 10 21 29 38 6 11 25 31 7 14 26 33 CHAPTER II 4 5 6 11 12 CHAPTER III SEC 14 - 44 CHAPTER IV of abetment 45 46 49 50 51 54 of criminal conspiracy 61 LOC LAW OF CRIMES 1  CHAPTER V of sexual offences 63 64 65 66 67 68 69 70 71 Of criminal force and assault against woman 74 75 76 78 79 Of offences relating to marriage 80 85 86 87 Of offences against child 97 98 99 CHAPTER VI Of offences affecting life 100 101 102 103 104 105 106 107 108 109 110 11 112 113 Of hurt 114 115 116 117 124 Of wrongful restraint and wrongful confinement 126 127 Of criminal force and assault 128 129 130 Of kidnapping, abduction, slavery and forced labour 137 138 143 LOC LAW OF CRIMES 2  CHAPTER VII 152 CHAPTER XI 189 191 194 CHAPTER XI 227 228 CHAPTER XVII 303 304 308 309 310 318 LOC LAW OF CRIMES 3 CHAPTER I - PRELIMINARY BNS IPC Definitions General explanations Sec 2 and subparts Sec 6 - 52 A ADDED REMOVED - Child - Queen - - 2(1) - ACT (1) “act” denotes as well a series of acts as a single act; - Act means a singular act or a multitude of acts but will be considered to be a singular acts. 2(2) - ANIMAL (2) “animal” means any living creature, other than a human being; - This act only applies to human 2(3) - CHILD (3) “child” means any person below the age of eighteen years; - Not provided in IPC - Before had to refer to JJ act - 2024 amendment to JJ act by which for heinous crimes a person accused of 15-16 years of age will be tried as an adult when the threshold value of punishment is 7 years or above. - Amendment after nirbhaya case after being recommended by J Verma committee. CRIME NATURE 1. Punishment duration 2. Gravity BNS PUNISHEMENT DURATION 1. Highly serious ( 7 YEARS AND ABOVE ) 2. Serious ( 7 YEARS ) 3. Okay 3 YEARS AND LESS ) - In 173 BNSS okay falls under where police can think of launching investigation and then filing case LOC LAW OF CRIMES 4 2(4)- COUNTERFEIT ( Sec 28 IPC ) “(4) “counterfeit”.––A person is said to “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised. Explanation 1.—It is not essential to counterfeiting that the imitation should be exact. Explanation 2.—When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised;” INGREDIENTS TO COUNTERFEIT 1. Causing something to resemble another (resemblance) 2. Intending by means of resemblance to cause deception (intention) 3. Knowing its likely that deception will be caused (deception) - Intention to deceive is a mental element - Falling to victim to deception doest matter. As with or without deception has taken place irrespective of whether you have been deceived) - Possession Also Punishable- INTENTION NOT REALLY IMP - Presumption of aforementioned intention unless proven otherwise - Even mere possession of counterfeit currency is sufficient to hold the person liable under IPC/BNS - The aforesaid definition states that imitation is not required to be exact. It also says that it is not necessary that counterfeit note should be made with primary intention of its being looked as genuine. It is sufficient if resemblance to genuine currency note is so caused that it is capable to being passed as such. - In order to apply section 28/ 2(4), what the Court has to see is whether one thing is made to resemble another thing and if that is so and if the resemblance is such that a person might be deceived by it, there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved. - if the resemblance is such that a person might be deceived thereby, it shall be presumed until the contrary is proved that the person causing one thing to resemble another thing was intending by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised. STATE OF UP V HAFIZ MOHD, 1969 held that it is a serious offence second time offenders would have a punishment of nothing less than life imprisonment LOC LAW OF CRIMES 5 Sahid Sultan Khan v. State of Madhya Pradesh 2007 Mere possession of equipment to make counterfeit is not sufficient for the offence. Possession of counterfeiting tools but not involved in counterfeiting then the person not liable because mere possession of equipment not valid. Mere possession of tools is not sufficient to prove that the person is involved in counterfeiting process This is an exclusive judgment given only by Bombay HC and is not binding nationally SEC 178 178. Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any coin, stamp issued by Government for the purpose of revenue, currency-note or bank-note, 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.—For the purposes of this Chapter,— (1) the expression “bank-note” means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money; (2) “coin” shall have the same meaning as assigned to it in section 2 of the CoinageAct, 2011 and includes metal used for the time being as money and is stamped and issued by or under the authority of any State or Sovereign Power intended to be so used; (3) a person commits the offence of “counterfeiting Government stamp” who counterfeits by causing a genuine stamp of one denomination to appear like a genuine stamp of a different denomination; (4) a person commits the offence of counterfeiting coin who intending to practise deception, or knowing it to be likely that deception will thereby be practised, causes a genuine coin to appear like a different coin; and (5) the offense of “counterfeiting coin” includes diminishing the weight or alteration of the composition, or alteration of the appearance of the coin. - MANUFACTURING - Both intention and knowledge SEC 180 180. Whoever has in his possession any forged or counterfeit coin, stamp, currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.—If a person establishes the possession of the forged or counterfeit coin, stamp, currency-note or bank-note to be from a lawful source, it shall not constitute an offence under this section POSSESSION - No requirement for mental element or intention - Knowledge is presumed - Presumed to have knowledge as possession institutes partaking in the act of circulation LOC LAW OF CRIMES 6 2(6)- BNS ( Sec 46 IPC ) (6) “death” means the death of a human being unless the contrary appears from the context; 2(7)- BNS ( Sec 46 IPC ) r/w 2(36, 37, 38) (7) “dishonestly” means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person; Sec 24 IPC (36) “wrongful gain” means gain by unlawful means of property to which the person gaining is not legally entitled; Sec 23 para 1 IPC (37) “wrongful loss” means the loss by unlawful means of property to which the person losing it is legally entitled; Sec 23 para 2 IPC (38) “gaining wrongfully” and “losing wrongfully”.—A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property; and Sec 23 para 3 IPC A steals pen of B - B WRONGFUL LOSS - A WRONGFUL GAIN - Currency has no ownership. Wrongful gain o Gain by unlawful, illegal or unauthorized way o Gain by someone who is not legally entitled to it o Gain by causing loss to someone who has the right to enjoy it o If there is wrongful gain there needs to be wrongful loss to other ▪ Eg: Jayalalitha used the states assets to give gifts to the guest in the wedding of her adopted son ▪ Eg 2: Mayawati used the states funds to propagate the political agenda of her party ( both these examples indicate wrongful gain to one and wrongful loss to other) ▪ Eg 3: A person picks up a 500 Rs note from the highway, this will not amount to wrongful gain because he does not know who the owner is LOC LAW OF CRIMES 7  ▪ Eg 4: panama papers - nawaz sharif A person who is legally entitled to any benefit should have full right to claim its enjoyment and possession The gain or loss contemplated need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary "keeping out" of property from the person legally entitled (KN Mehra v. state of Rajasthan) There are two conditions o For wrongful gain – the gain should be taken by unlawful means o For wrongful loss- should happen of such property of that which the person is legally entitled to Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Difference between wrongful gain and gaining wrongfully o Wrongful gain means adopting the wrong method eg: client belongs to a particular caste, but he is unable to get a caste certificate so he bribes the incharge and gets the certificate o A person who is not entitled to the gain and is not eligible for it is someone who is gaining wrongfully. Eg: a person who is not belonging to the caste but bribes and gets the caste certificate is gaining wrongfully/ Sec 24 Dishonestly: Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". With the intention of causing wrongful loss or wrongful gain Unless there is wrongful gain to one person, or wrongful loss to another, an act would not be 'dishonest' An act done with the intention to cause 'wrongful gain' can be said to be dishonest Intention of ‘Beimaani’ -p LOC LAW OF CRIMES 8 K N MEHRA CASE - Pilot trainee used to go for training at specific times. One day at a specific time he found a plane free and started using it for flight. He went to pak boundary. - Court said he committed crime of being dishonest as he didn't follow the rule of his institute. - Indian air force pilot took the aircraft without permission of the authorities and flew it over Pakistan airspace, he had to then land in Pakistan too. He was then arrested and sent back to India. He was sued. The supreme court held that since he was flying the plane without permission and he was not authorized to use it, it would lead to wrongful gain or loss since he has wrongfully acquired it and deprived the government and he was thus held guilty.’ Sec 2(8)/ Sec 29 IPC “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Explanation 1.—It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a Court or not. Illustrations. (a) A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document. (b) A cheque upon a banker is a document. (c) A power-of-attorney is a document. (d) A Map or plan which is intended to be used or which may be used as evidence, is a document. (e) A writing containing directions or instructions is a document. Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed. Illustration. A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and shall be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature. Matter which is described upon by letters, figures, marks Eg- matter written on whiteboard counts as documents for classes Any expression of matter can be considered a document BNS includes electronic documents as part of the section, IPC included post ITA. LOC LAW OF CRIMES 9  Example- Arrest warrant or search warrant will be issued in the name of an officer. Any endorsement on the warrant authorizing someone else to execute the warrant can also be considered a warrant. To express a thought which can be evidence May or may not be used in court Means of which message can be conveyed. It also includes a leaf on which map is drawn Examples of documents- assessment orders, letter or marks imprinted on trees, currency notes would be included, charge ticket for overseas calls which a telephone operator has made for accounting purposes Ishwarlal v. State of Maharashtra- Assessment order is a document 2(9) BNS / Sec 25 IPC - Fraudulently higher damage - Dishonestly lower damage (9) “fraudulently” means doing anything with the intention to defraud but not otherwise; Intention to defraud To cause injury o Can actual, possible, physical or mental injury Main element is intention to defraud but nothing else Its aim is to deceive or cause deception o Deception is a wider term and means poses to be something but is actually not o Eg: during demonetisation when people started impersonation tax officers, they had the intention to defraud Fraud o Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. o Fraud and deception are synonymous (Meghmala v. Narsimha Reddy) o Intends to gain dishonest advantage over another LOC LAW OF CRIMES 10  o Eg: people go door to door under the pretence of polishing the gold, but put the jewellery in aquafaba which dissolves the gold. This is fraud o Eg: the milkman not giving you as much milk as you paid for is fraud o Essentials of fraud ▪ Representation or assertion of ▪ It must relate to a fact ▪ Must be with knowledge that it is false, or without belief in its truth ▪ Must induce another to act upon the assertion in question or to do certain acts ▪ Intention to deceive or cause deception ▪ Actual injury or loss must occur Difference between dishonestly and fraudulently The intention with which an act is done is very important in determining whether the act was done dishonestly or fraudulently Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently Further, the juxtaposition of the two expressions "dishonestly" and "fraudulently" used in the various sections of the Code indicate their close affinity and therefore, the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary ingredient. Both need not exist, one would be enough. So too, if the expression "fraudulently" were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so Where the accused, after the execution and registration of a document, which was not required by law to be attested, added his name to the document as an attesting witness, it was held that his act was neither fraudulent nor dishonest and the accused was, therefore, not guilty of forgery.(Dr. Vimala) A person who is not a member of Scheduled Caste or Scheduled Tribes obtains a false certificate with a view to gain undue advantage to which he or she was not otherwise entitled to would amount to commission of fraud (Lilly Kutty v Scrutiny Committee, AIR 2005). Suppression of a material document would also amount to a fraud on the court. (Gowrishankar v Joshi Amba Shankar Family Trust, (1996) Dishonestly Fraudulently Intention to deceive is not an essential Intent to deceive is the main element element but causing wrongful loss and gain is Involves wrongful loss or gain Involves deceit or injury Losses are more pecuniary in nature Injury may be economic in nature but it is not necessary Its scope is very narrow It has a wider scope It leads to a specific loss It leads to any mental or bodily injury LOC LAW OF CRIMES 11  Its impact is lesser It has a greater impact Mental element is required Mental element is required It does not fall under substantive crime Makes crime a separate crime under being fraudulent ( a crime in itself) Deceit is not an ingredient of the word Deceit is an essential ingredient of the dishonestly definition of fraudulently Case: Union of India v. Rajinder Singh 2011 Case: Dr. Vimala AIR 1963 SCC 1572 This case made a distinction between S24 and S25. It held that S25 has a wider definition whereas 24 only includes wrongful gain and loss but in case of fraudulently it includes all injuries of all kinds. Fraud may lead to shock, no mental injury is included in dishonestly Difference between Dishonestly and Fraudulently Under the IPC, dishonestly and fraudulently are two distinct terms that refer to different forms of criminal behavior. Section 24 of the IPC defines dishonestly as an act done with the purpose of bringing wrongful gain or loss to someone else. This can include theft, deception, or violation of confidence. Dishonestly does not always imply deception or fraud, but rather the desire to cause damage or gain through wrongful means. Section 25 of the IPC, on the other hand, defines fraudulently as an act done with the purpose of deceiving someone else for personal benefit. Forgery, theft, and fraud are all examples of fraudulent behaviour. In summary, the main distinction between dishonesty and fraud is that dishonesty involves wrongful gain or loss through wrongful means, whereas fraud involves lying or duplicity for personal gain. Dishonestly and Fraudulently Under the IPC, dishonestly and fraudulently are two distinct terms that refer to different forms of criminal behavior. Section 24 of the IPC defines dishonestly as an act done with the purpose of bringing wrongful gain or loss to someone else. This can include theft, deception, or violation of confidence. Dishonestly does not always imply deception or fraud, but rather the desire to cause damage or gain through wrongful means. Section 25 of the IPC, on the other hand, defines fraudulently as an act done with the purpose of deceiving someone else for personal benefit. Forgery, theft, and fraud are all examples of fraudulent behaviour. In summary, the main distinction between dishonesty and fraud is that dishonesty involves wrongful gain or loss through wrongful means, whereas fraud involves lying or duplicity for personal gain. LOC LAW OF CRIMES 12 LOC LAW OF CRIMES 13 2(10) BNS / Sec 8 IPC “gender”.—the pronoun “he” and its derivatives are used of any person, whether male, female or transgender. Explanation.–– “transgender” shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019; The IPC is a gender neutral code He includes all other pronouns Third gender was also included’ case: National legal service authority v. UOI 2014 , Navtej Singh Johar case and Girdhar Gopal case (madras HC) he includes either man or woman BNS includes transgender. 2(11) BNS / Sec 52 IPC “good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention; The two essentials are LOC LAW OF CRIMES 14  o Due care- Due care would depend on the facts of the case o Attention Whether the actions are pure o Pure means honest act, acts without fraud or ill will HONEST OPINION (DOCTORS, LAWYERS ETC.) SHOULD ALWAYS BE IN GOOD FAITH. Case: Brijendra Singh v. State of UP 1981 Person doing work in good faith is the one who is doing the act without guilty mind and with no fraud, a thing is said to be done in good faith where it is done honestly, free from fraud or fraudulent design 2(14) BNS / Sec 44 IPC “injury” means any harm whatever illegally caused to any person, in body, mind, reputation or property; Harm caused to any person This harm should be caused illegally- no lawful means Injury includes any harm that is illegally causes, harm can be to the body-physical, mind- also include shock, property or reputation Mailswamy v state 1994 CrLJ 2238 Mad 2(15) BNS / Sec 43 IPC “illegal”- “legally bound to do”. —The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit; The word `illegal' in the section has been given a very wide meaning. It consists of three ingredients: (1) everything which is an offense; (2) everything which is prohibited by law and (3) everything which furnishes ground for civil action The words "legally bound" do not necessarily only mean the law made by the legislature or statutory law. Section 43 IPC, 1860 contains a definition of a person being legally bound to do, that is, a person is stated to be legally bound to do whatever it is illegal in him to omit. Difference between illegal and offence o No difference as such o Everything illegal is an offence and every offence is illegal unless mentioned otherwise - Civil action doesn't mean civil case it means taking action with appropriate authorities - Legally bound to do - expectation from someone that something that should be legally done 1. Legally obligated or 2. Expected by law Prohibited by law means that it is forbidden by law LOC LAW OF CRIMES 15 2(16) BNS / Sec 19 IPC (16) “Judge” means a person who is officially designated as a Judge and includes a person,–– (i) who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (ii) who is one of a body or persons, which body of persons is empowered by law to give such a judgment. A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge; Judge includes those appointed as judges in the judiciary. Eg: JMSC, JMFC, CJM, Supreme court, High court, The judge should be a designated authority Appointed as judges in the executive branch of the government to give judgements. Eg: SDA, District magistrate, Patwari, Tehsildar Every other who gives final judgements Collective constitution or body to give decisions. Eg: Juvenile justice board, Green tribunal Brajnandan Sinha v. Jyoti Narain The right to pronounce a definitive judgement is considered the sine qua non of a court Under S19, arbitrator is not a judge o S21(6) – every arbitrator appointed by court of justice is not considered a judge because arbitrators are not always appointed by courts o the arbitral award is not final until the parties accept it o government appointed arbitrators are not judges but public servants Manohar lal v. Vishesh Anand 2001 ▪ Held: Arbitrators are not judges ▪ Arbitration is a complete process done by the parties and the courts are only involved when some violation of act occurs ▪ Arbitration is not always a judicial process but more so a dispute resolution process 2(21) BNS/ Sec 22 IPC “movable property” includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth; LOC LAW OF CRIMES 16 Sec 22 IPC Movable Property: The words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything. which is attached to the earth. "Land" and "Things Attached to the Earth": o The section differentiates between "earth" and "things attached to the earth." o "Earth" refers to the soil itself, while "things attached to the earth" encompass items like buildings, structures, trees, and other fixtures connected to the land. "Land" and "Earth" are Distinct: o The section emphasizes that "land" and "earth" are not interchangeable terms; they have separate meanings in the context of property law. o "Land" generally refers to a specific area of the earth's surface, including the soil and everything attached to it. Severance of Attached Things: o The section explains that things attached to the earth can be severed or separated from the land. o When attached items are severed, they become movable property, distinct from the land they were connected to. Movable Property Subject to Theft: o Once severed, the components of the soil (inclusive of stones and minerals) become movable property. o This movable property is capable of being the subject of theft under the law. Severed Components as Movable Property: o Components such as soil, stones, minerals, etc., when severed from the land or earth, can be bought, sold, or transferred as movable property. "Earth" vs. "Things Attached": o "Earth" refers specifically to the soil itself, which is immovable property, whereas "things attached to the earth" can be movable if severed. Legal Implications of Severance: o Severing attached things changes their legal status from immovable to movable property, subject to applicable laws and regulations. Land as Immovable Property: o Land, along with the structures and fixtures attached to it, remains immovable property and is not subject to theft in the same way as movable property. The word corporeal has been removed from BNS. MOVABLE PROPERTY IS - every description NOT- land, things attached to Earth, permanently fastened. Corporeal means things that can be seen and touched or felt, related to material things, right to ownership in material things. Incorporeal is tangible and intellectual. LOC LAW OF CRIMES 17  Transfer of Corporeal Property: If the property is something you can move (like a car), you can physically hand it over to someone else. If it's something you can't move (like a house), you can give the keys and legal possession to someone else. Transfer of Incorporeal Property: Since you can't physically hand over something like rent or intellectual property, you need to use a written document to transfer it to someone else. Reputation can never be equivalent to property. reputation/ goodwill Definition related to intangible property important for taxation BNS INCLUDES PROPERTY OF EVERY DESCRIPTION. “Are intended to include” is removed- earlier signified that definition is not exhaustive In general clauses act, it is property of every description except immovable property Theft is possible only of movable property If the things can be dismantled it is included in movable property but if something is permanently fastened it is immovable property. LOC LAW OF CRIMES 18  The DPDPA ACT 2023 RECOGNIZES DATA AS PROPERTY. Section 39 of the Indian Electricity Act, 1910 provided that, “Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code”. The Supreme Court of India in the case of Avtar Singh v. the State of Punjab observed that electricity cannot be held as a movable property but fish can be categorised as movable property. The court further said that the human body either living or is dead cannot be a movable property but a mummy can be. In the case of Govinda Majhi v. Arobinda Kaur, the court held that the accused is not guilty of catching fish from a portion of the licensed river of the defendant. Fishes are always considered as ferae naturae which means they are wild animals and therefore cannot fall under the possession of any individual although it being a movable property. Therefore if also catching fish is prohibited in the area which is in possession of the defendant, no theft is said to have been committed to catching the fish. Fishes are free from the owner’s possession if they are made to flow in water which comes in and out of the pond which the owner owns. A new viewpoint about fishes was gathered by the court in the case of Chandi Kumar Das v. Abanidhar Roy. In this case, the question that arose before the court was if fishes are removed from a tank which was in possession of the person in actual sense, and removal of fishes from that place will amount to theft or not. The court held that if fishes are stolen from an enclosed place where the fishes are not free to flow LOC LAW OF CRIMES 19 anywhere they want, removal of fishes from that place will amount to theft. Thus it is on the actual possession of the owner which determines the liability on fishes. FOR OUR OWN KNOWLEDGE, DID NOT DO IN CLASS The definition of “movable property” in this section is not exhaustive (RK Dalmia v. Delhi Administration) Standing crop, so long as it is attached to the earth is not movable property as defined in the Code, but the moment it is severed from the earth its character is changed and it can become the subject of theft said in the case of Kunhayu v. State 1965 Fish in any water are corporeal property and they become subject of theft as soon as they are separated from the waters, dead or alive, and are moved said in the case of state of Rajasthan v. Pooran Singh 1977 Till swamp is not removed from the swamp it is immovable property, when salt removed it becomes movable property 2(25) BNS/ Sec 33 IPC “omission” means single omission as well as a series of omissions; An omission is sometimes called a negative act, but this seems dangerous practice, for it too easily permits an omission to be substituted for an act without requiring the special requirement for omission liability such as legal duty and the physical capacity to perform the act. The effect of section 32 and this section taken together is that the term 'act' comprises one or more acts or one or more illegal omissions. The word 'act' does not mean only any particular, specific, instantaneous act of a person, but denotes, as well, a series of acts. 2(26) BNS/ Sec 11 IPC “person” includes any company or association or body of persons, whether incorporated or not; Person can be classified into two categories o Natural Person o Artificial juridical person Association of Person (artificial + natural) o Eg: AOP, BCCI Body of Individuals (natural person) o Bar Council of India, ICMR Trusts Companies- PVT, PUBLIC, 0 PERSON? LOC LAW OF CRIMES 20  Idol also considered as juristic person The word accused or accused person are not defined in the IPC, Indian evidence act or the general clauses act A complaint can be filed in the name of a juristic person because it is also a person under the eyes of law IPC does not differentiate in matters of crime whether it’s a natural person, registered person or a not registered artificial person Association of persons and body of individuals are two different things. A person in AOP could be a company or an individual person. The term person could include any association, body of individuals or company, irrespective of whether it is incorporated or not. However, in a BOI, only individuals can join with the intention of earning some income. Hence we can say, BOI only comprises of individuals, whereas an AOP could include legal entities. 2(27) BNS/ Sec 12 IPC “public” includes any class of the public or any community; It doesn’t define the word public but just says that any class of public or any community is included within the term public It means members of the community, the aggregate of citizen of state, nation or municipality or inhabitants of a particular person Eg: used in S159-Affray, S291-Public obscenity, S510- Misconduct by drunken person This is an inclusive definition In the case Harnandan Lal v Rampalak Mahto, (1938) A body or class of persons living in a particular locality may come within the term 'public' 2(28) BNS/ Sec 21 IPC r/w Sec 14 IPC “public servant” means a person falling under any of the descriptions, namely: — (a) every commissioned officer in the Army, Navy or Air Force; (b) every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; (c) every officer including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised to perform any of such duties; (d) every assessor or member of a panchayat assisting a Court or public servant; (e) every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court, or by any other competent public authority; (f) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; LOC LAW OF CRIMES 21 (g) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; (h) every officer whose duty it is as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; (i) every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; (j) every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; (k) every person— (i) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (ii) in the service or pay of a local authority as defined in clause (31) of section 3 of the General Clauses Act, 1897, a corporation established by or under a Central or State Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013. Explanation.— (a) persons falling under any of the descriptions made in this clause are public servants, whether appointed by the Government or not; (b) every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation is a public servant; (c) “election” means an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of election to which is by, or under any law for the time being in force. Illustration. A Municipal Commissioner is a public servant; Sec 14 ipc defines government servant. Govt servant definition not in BNS. Every government servant is a public servant but not vice versa.- Govt can be state or central Government servants are those working under government, ex- upsc, state public services exam etc, minister of transport. Public servants are MLA’S, MP’s. Governor and president are not servants because they are the head of executive, they themselves are the “government”. Ministers without portfolio are public servants. LOC LAW OF CRIMES 22 GOVERNMENT SERVANT IN IPC Government servant is appointed, employed or continued There is no specified duration from policy of government Vicarious liability of the code? Appointed by government or authority of the government Pay and salary given by government (eg: vicarious liability) No deviations from policy of government Public servant 2(28)(k)- it is a litmus test to determine whether a person is a public servant or not o PAY OR SERVICE OF GOVERNMENT- Salary, pay commission, or fee from the government or government authority o PAY OR SERVICE OF ANY LOCAL AUTHORITY- inclusive of government companies and PSUs. The semicolon in 2(28)(k) signifies that it must fall under either (i) or (ii), to widen the concept of public servant. Example- When Morbi bridge collapsed, public servants would be liable, the contractors, government and officers will be liable. Case: Dilawar Babu v. State of Maharashtra AIR 2002 “Lecturer of public university is a public servant. If in a private university, then only counted as a public servant only when he is given public work and will be counted as a public servant only till the time he has been entrusted with the work” Case: K Viraswami v. Union of India 1991 “ Judges are also public servants” Case: RS Nayak v. AR Antulay, 1986? 1988? LOC LAW OF CRIMES 23 Case: PV Narsimha Rao case 1998 (PV Narsimha rao is the only sitting PM to be charged with corruption This case was in reference to member of parliaments and Prime ministers, Chief ministers, 14(1)(a) Lokpal act, 2013. Public servants have some advantages in criminal matters due to S 197 CrPC (prior permission required to institute proceedings under S80 of CPC against sitting public servants, 60 days prior notice required), For IPC prior notice is required from the appropriate government Held: member of parliament is also a public servant, MPs get remuneration from consolidated fund of india, not from govt. For institution of criminal case against a public servant prior permission needs to be taken this was held in the Jayalalitha case. Public servant can be prosecuted for the time for which he was in office, even after he left office. President and governor are not public servants but constitution gives them the power to be executive heads Case: M Karuna Nidhi V. Union of India 1997 Every person working in a government office even in the capacity of peon, collector etc is a public servant University teachers employed for temporary work with the government are not public servants No protection to public servants under S197 of the IPC but for others the protection exists. LOC LAW OF CRIMES 24 CASE: Oriental Bank 2021 case Public bank was amalgamated with a private bank in 2020. Before amalgamation, they were embezzling money (pvt bank), case was registered by CBI, got permission to prosecute them under PC Act. Bank said it wont be PC Act, because not public servants, SC said bank performs functions of public importance, including private banks so can be included in public servant. People in private institutions perform public functions (pvt hospitals, banks, etc)- not public servant- government by private policies.- DOUBT However private practitioners practicing in public hospitals can be considered public servants.- HOWEVER, this is based on instruction, if voluntary public service then not public servant. Case ISsue Held N Narsimha rao v. Union MP/ MLA are public Members of parliaments of India servants? are public servants Also in reference to PM, CM, Lokpal M Karunanidhi v. Union CM and PM Public duty is the duty of India that affects public at LOC LAW OF CRIMES 25  large. CM and PM are public servants. AR Antulay v. RS Nayak Elected people fall under the purview of public Public servants include servants? those taking decision for public. MLAs do not fall under the purview of public servants and Member of Parliaments also do not fall under Public Servants K Veerswami v. Union of Judges of HC and SC are Yes India Public servants this category of public servants would include judges of the High Courts and Supreme Court. It is not necessary that there should be master and servant relationship to constitute a person as a "public servant" Dilawar Babu v. State of Lecturer of private In private university, Maharashtra university on only counted as a public government duty servant till he is entrusted with the government duty Lecturer of public university is a government servant Mohd. Hadi Raja v. State Working in public Can be government of Bihar 1998 undertakings, servants but not public government companies, servants PSUs? the definition under this section has been held to not be exhaustive. A person may be a public servant in terms of some other statutes. (Naresh Kumar Madan v. State of MP) A public servant under suspension does not cease to be a public servant within the meaning of this section (Dhanpal Singh AIR 1970 Punjab Haryana) Public servant definition is relevant for definition of PC act. Any person under this definition will have application of PC act. LOC LAW OF CRIMES 26  Section 2(i) of the Prevention of Corruption Act 1988 has enlarged the concept of public servant wider than that contained in section 21 IPC, 1860. A comparison of the definition of 'public servant' contained in section 21 of IPC, 1860 and that contained in section 2(c) of the 1988 Act would show that section 21 of IPC, 1860 did not include persons falling under sub-clause (ix), (x), (xi) and (xii) of section 2(c). Sub-clause (viii) of section 2(c) is also wider in amplitude than clause (12)(a) of section 21 of IPC, 1860.56. Definition of 'public servant' is of no relevance under the PC Act 1988. Differences between public servant and government servant By virtue of qualification, all government servants are public servants but all public servants are not government servants o Eg: if the government tells a private doctor to act on their orders and if he agrees then he is performing public duty A “servant of the government” is someone who works for the government, either civilly or militarily. Employees of any government organization or agency, as well as members of the armed forces, police, and other law enforcement bodies, are all included. This is defined under Section 14 of the IPC. A “public servant,” on the other hand, is a wider word that includes not only government personnel but also elected officials, justices, jurors, and anyone who conducts a public obligation. This definition is broader in breadth because it includes anyone entrusted with public authority and duties, whether or not they are hired by the government. This is defined under Section 21 of the IPC. The work of the public servant o Is more specific o Wider in connotation o Liability lies more A public servant may not be on the payroll of the Government and may be acting honorarily without drawing any salary or remuneration for his services. On the other hand, Government servant always remains on the payroll of the Government. The term public servant in a wider sense may include Government servant. In other words, ‘public servant’ is the genus and the Government servant is a species of the soil genus. Public servants are held to a higher standard of conduct than other residents under the IPC, and they face harsher penalties for certain kinds of criminal behavior. Section 161 of the IPC, for example, made it a criminal crime for a public servant to take or acquire any reward other than their legal pay, whereas Section 409 provides for harsher penalty for a public servant who conducts a criminal breach of trust than a private person. Liquidator specially appointed by court is also a public servant Court appointed arbitrators are not judges but public servants Government Servant 14 Public Servant 21 LOC LAW OF CRIMES 27  - Is mandatorily appointed, continued - Can be either directed to do the or employed work or can be appointed - Definitely gets remuneration - Remuneration not mandatory - Have to do every government act - Do acts only for which they are appointed and normally work of public interest/duty - Longer term mostly - Can be for short term projects as well - All govt servant, can be public - All public servants cannot be servants government servants - Not as wide as public servant - The work of PS is more wider, specific and higher liability - Government servant is the species - Public servant is the genus The following persons are held to be Public Servants: (1) Member of Parliament (MP) (2) Chief Minister and Ministers (3) Judges of Superior Courts (4) Speaker of Legislative Assembly (5) Employee of a Nationalised Bank (6) All Railway Servants (7) Teacher in a Government school (8) Chairman of Managing Committee of a Municipality (9) Employees of Life Insurance Corporation (10) Member of Auxiliary Air Force (11) Employee of Bharat Heavy Electricals (India) Limited (12) Employees of Government Company (13) Officers of State Electricity Board (14) An employee of a Co-operative Society which is controlled or aided by the government, is a public servant covered under section 2(c) of the IPC Act 1988 as also the manager for the commission of offence under section 409 of the IPC, 1860 (15) Secretary, Health Supervisor of Municipality (16) Drug Inspector LOC LAW OF CRIMES 28 (17) Any surveyor while performing his legitimate function under any of the Revenue Civil Court (18) Government Pleaders (19) An IAS officer posted as the managing director of a State Financial Corporation (20) The sarpanch of a Gram Panchayat. The following persons are not Public Servants: (1) University Examiner (2) Elected office bearers with President and Secretary of a registered Co-operative Society. (3) A Chartered Accountant who had been appointed as an Investigator by the Central Government under the Insurance Act 1938. (4) Municipal Councillor (5) Laboratory Officer in Municipal Corporation (6) Member of IAS whose service placed at the disposal of Co-operative Society. (7) A Government Company is not a public servant though its employees are public servants Government Company. (8) Chairperson and Standing Committee Chairman of Municipality. (9) Leader of Opposition. (10) Hospital or the Authorization Committee constituted by the Government under section 9(4) of the Transplantation of Human Organs Act 1994. (11) Branch Manager under the Assam State Warehousing Corporation. (12) Commissioner appointed by Civil Court to seize account book. (13) A panel doctor under the ESI Scheme. 2(29) BNS/ Sec 26 IPC “reason to believe”.—A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise; Sufficient cause to believe but not otherwise Higher state of mind- because it should not be just a suspicion, cannot be whimisical arbitrary. Reasons to believe is another facet of state of mind When a person has sufficient facts to support It is not the same thing as suspicion or doubt and mere seeing also cannot be equated to believing It is a higher level of state of mind. It means that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned (Joti Parshad v. State of Haryana) Under S154 CrPc-Reasons to believe beyond reasonable doubt LOC LAW OF CRIMES 29  o police officer discretion to register FIR, he can only write if he has reasons to believe that the offence has taken place o If police denies the filing of FIR then they must specify the reason for doing so Case: Ram Chandra bhagat v. State 2013: must have material facts Case: N Nagendra Rao v. State of AP 1994 o Having sufficient reasons for a thing o The expression "reason to believe" has been interpreted by this Court to mean that even though formation of opinion may be subjective but it must be based on material on the record. It cannot be arbitrary, capricious or whimsical. It is, thus, a check on exercise of power to seize the goods. The circumstances of a case are such that a reasonable or prudent man could have believed or said to have reasons to believe Hamid Ali v State, 1961 (2) Cr LJ 801.- The word "believe" is a very much stronger word than "suspect" and that it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the note with which he was dealing was a forged one and that it was not sufficient to show that the accused was careless or he had reason to suspect or that he did not make sufficient enquiry to ascertain the fact. 2(30)/ Sec 41 IPC “special law” means a law applicable to a particular subject; The special laws contemplated in section 40 and this section are only laws, such as the Excise, Opium, Cattle Trespass, Gambling and Railway Acts, creating fresh offences, that is, laws making punishable certain things which are not already punishable under the Penal Code. Negotiable Instruments Act being a special statute has overriding effect over the provisions of Cr PC, 1973. 303. Since nothing in Factories Act (Special Law) which prescribes punishment for rash and negligent act of occupier or manager of factory which resulted into death of any worker or any other person, the general Law, i.e., IPC, 1860 will apply. 2(31) BNS/ Sec 30 IPC “valuable security” means a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right. Illustration. A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer the right to the bill to any person who may become the lawful holder of it, the endorsement is a “valuable security”; LOC LAW OF CRIMES 30  Every document may not be valuable security. A document in relation to a legal right. Wherein a legal right is o Created o Extinguishes it- decree of divorce (marriage is ended) o Extended – GNLU ID card extends the use of facilities o Relinquishes- sold shares to B (relinquish own right on those shares) o Transfer it- actionable claims o Release it- discharge, bail o Restriction- A copy of a valuable security is not a valuable security- Gobinda Prasad, AIR 1962 Cal 179 Certified copy is document but not a valuable security and does not create a legal right An order of assessment is a valuable security *difference between document and val. security *difference between relinquish and release of legal right Hari Prasad (1955) 1 All 749- The book of accounts was kept where parties have no signed, not a valuable security. Moosa v State of Kerala AIR 1963 Ker 68- The book of accounts was kept where parties have no signed, not a valuable security. Kansasaheb Kalu Patil v. State of MH 1981 AK Khosla v. TS Venkatesan 1992 A photocopy of a valuable security is not a valuable security 2(33) BNS/ Sec 39 IPC “voluntarily”.—A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration. A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry LOC LAW OF CRIMES 31 that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily; - In relation to causation of an effect and of an act. - Voluntarily is in conscious mind - Causation of ultimate act or response - It is a higher state of mind The essentials to prove that the act was done voluntarily is o Intention - IT IS A PART OF VOLUNTARY o Knowledge- awareness about surrounding- end result is crime o Reasons to believe- that actus reus will be a crime Need to prove any one of the essentials exist If an act is the probable consequence of the means used by him, he is said to have caused it voluntarily whether he really means to cause it or not Section implicitly lays down the principle that a man is presumed to intend the probable consequences of his act In Olga Tellis v Bombay MC, 278. that the act of slum dwellers putting up their huts on public footpaths and pavements cannot be described to be "voluntary" for the purposes of the definition of "criminal trespass" in section 441, it being the result of utter helplessness and their moral right of survival Case: Dr. Minu Bhatia v. State 2002 Voluntarily means that there is a conscious, known effort Case: Abdul Majad v. State of Kerela (kerela hc) 1994 CrLJ 1040 (ker) - voluntarily means conscious activity, voluntarily means something that results in something. 2(36) BNS/ Sec 23 IPC 2(37) BNS/ Sec 23 IPC 2(38) BNS/ Sec 23 IPC “gaining wrongfully” and “losing wrongfully”.—A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property; and LOC LAW OF CRIMES 32  Difference between wrongful gain and gaining wrongfully- o Wrongful gain means adopting the wrong method eg: client belongs to a particular caste, but he is unable to get a caste certificate so he bribes the incharge and gets the certificate o A person who is not entitled to the gain and is not eligible for it is someone who is gaining wrongfully. Eg: a person who is not belonging to the caste but bribes and gets the caste certificate is gaining wrongfully/ LOC LAW OF CRIMES 33  CHAPTER II - PUNISHMENTS Sec 4 BNS/ Sec 53 IPC Punishments. —The punishments to which offenders are liable under the provisions of this Sanhita are— (a) Death; (b) Imprisonment for life; (c) Imprisonment, which is of two descriptions, namely:— (1) Rigorous, that is, with hard labour; (2) Simple; (d) Forfeiture of property; (e) Fine; (f) Community Service. Justice Krishna Iyer in Shivaji v State of Maharashtra, observed that the IPC does not tailor punishment based on the individual needs or psychological issues of offenders and criticized this lack of flexibility in sentencing. State of Rajasthan v Mohan Lal A Judge has wide discretion in awarding the sentence within the statutory limits. Since in many offences, only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. Bachan Singh v State of Punjab Death punishment is awarded for murder in rarest of the rare cases. - Example can be given in murder, or kidnapping for ransom or Waging war against the Government of India. 53A transportation to life has been omitted but still exists under IPC Transportation for life meaning life imprisonment upto 20 years exists But transportation for shorter duration or fixed term has been omitted Gopal Godse v. State of Maharashtra o Impact of transportation for life effected before amendment will be treated as rigorous imprisonment o When life imprisonment is to be calculated it will be calculated as the natural life of the person o Person sentences before enactment (before 1955) to be treated as rigorous imprisonment for the same period S53A inserted by Act 26 of 1955, it deals with sentence of transportation. After this amendment transportation as a sentence has been done away with. LOC LAW OF CRIMES 34 State of Gujarat v Hon'ble High Court of Gujarat It was held that it is imperative that the prisoner should be paid equitable wages for the work done by them. State of Madhya Pradesh v. Sheikh Shahid Nature of crime, the manner in which it was planned and committed, conduct of the accused, nature of the weapon used and all circumstances need to be considered. Naib Singh s/o Makhan Singh v. State of Punjab Ordinarily sentence of life imprisonment is until remaining period of convicts life. It will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.”... KN Chako v. State of Kerela When the sentence of life imprisonment imposed by the Sessions Judge is found to be manifestly inadequate resulting in miscarriage of justice this Court can enhance the sentence to death sentence. Chanda Lal v State of Rajasthan Where there was acquittal in the same year in which the crime was committed but the acquittal was reversed after eight years and conviction and jail terms were awarded and appeal against this order was disposed of in the 20th year of the crime, the Supreme Court reduced the sentence to the period already undergone and imposed a fine which if not paid, the original sentence was to be restored. Sec 5 BNS/ 54, 55 IPC Commutation of sentence.—The appropriate Government may, without the consent of the offender, commute any punishment under this Sanhita to any other punishment in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Explanation.—For the purposes of this section the expression “appropriate Government” means, — (a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced. This section creates a law by which any person awarded death sentence can get commutation without consent of the offendor The stage for the exercise of this power generally speaking is post-judicial, i.e., after the judicial process has come to an end. After the judicial function ends, the executive function of giving effect to the judicial verdict commences. LOC LAW OF CRIMES 35  Constitutional power under Article 72/161 would override the statutory power contained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power conferred by sections 54 and 55, IPC, 1860 No convict has fundamental right to remission or shortening of sentences Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime Section 54 and 55 give rights to the government for commutation Govt. of NCT Delhi v. Prem Raj S54, 55 and 55A of the IPC was challenged and it was held that it is completely legal and valid on part of the executive to commute the life sentence. Sher Singh v. State of Punjab delay in execution of death sentence is an important consideration to determine whether sentence should be commuted or not It was held in the cases of Shatrugna Chauhan, Triveni Ben and Afzal guru that in matters of offences against the state no remission would be given. Nawab Singh v. State of UP It is the right of every person to approach under S54 and 55, but the states should not pro actively do so Life imprisonment means rigorous imprisonment for rest of convict’s life Devendra Singh Bhuller and Mahendra Das Case The case was centred around the commutation of a death sentence. It considered all the factors related to how the delay affects a person who has been awarded the death sentence, as well as the factors for such delay and whether such factors were reasonable or not. Some parts highlighted that the nature of certain crimes are such that their punishment cannot be reduced due to the mere fact that there was a long delay in proceedings while other parts highlighted that a long delay in execution of a sentence can cause mental torment and make one ill and hence at that state the sentence must be commuted. All in all, the concept of death penalty and its commutation is not a one-size-fits-all concept and it needs to be decided on the examination of the facts unique to each case. Commutation was allowed in this case Sec 6 BNS/ 57 IPC Fractions of terms of punishment.—In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided. LOC LAW OF CRIMES 36  Section 57 of the IPC, 1860 does not in any way limit the punishment of imprisonment for life to a term of 20 years. Section 57 is only for calculating fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. Swami Shraddhanand v. State of Karnataka o Deals with how to calculate life imprisonment o If we have to decide fraction of life imprisonment it should be 20 years o It is also helpful to calculate the fine with punishment o Unless matter is very serious life imprisonment is prescribed in the judgment It has not been made a rule since it will depend on the facts and circumstances of the case Munna v. UOI Life imprisonment cannot be treated as 14yrs or 20yrs without formal remission by appropriate government Sec 11 BNS/ 73 IPC Solitary confinement.—Whenever any person is convicted of an offence for which under this Sanhita the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, namely: — (a) a time not exceeding one month if the term of imprisonment shall not exceed six months; (b) a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year; (c) a time not exceeding three months if the term of imprisonment shall exceed one year. Perrarivalan v IG of Prisons, Madras, 1992 Cr LJ 3125 (Mad) Where the petitioner, an undertrial prisoner, who was arrested in connection with the assassination of a former Prime Minister was put in a separate cell only as a precautionary measure, to ensure his non-mingling with other prisoners and for his security, it was held that it did not amount either to solitary confinement or cellular confinement. Because kept in confinement for security reasons. In the Sunil Batra v. Delhi Administration and Triveniben v. State of Gujarat cases, the court ruled that solitary confinement cannot be imposed on a death row convict unless they commit a prison offence. Sec 12 BNS/ 74 IPC Limit of solitary confinement.—In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods. LOC LAW OF CRIMES 37 LOC LAW OF CRIMES 38 CHAPTER 3 - GENERAL EXCEPTIONS (14-44) SEC 14 BNS / 76 IPC 14. Act done by a person bound, or by mistake of fact believing himself bound, by law. — Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. Illustrations. (a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence. (b) A, an officer of a Court, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence. Mistake of Fact S76 If by reason of ‘mistake of fact;’ and not ‘mistake of law’ In good faith believes to be bound by law, in doing an act For this section to exist the person needs to be o Bound by law o There should exist some legal obligation on him —In order to entitle a person to claim the benefit of this section it is necessary to show the existence of a state of facts which would justify the belief in good faith, interpreting the latter expression with reference to section 52, that the person to whom the order was given was bound by law to obey it. SITUATION- Thus, in the case of a soldier, the Penal Code does not recognize the mere duty of blind obedience to the commands of a superior as sufficient to protect him from the penal consequences of his act. But in certain circumstances a soldier receives absolute protection under section 132 of the CrPC, 1973. The net position appears to be that if superior order is in conformity with the law no further question arises and the subordinate officer is protected by section 76 IPC, 1860, if he carries out that order. It is only when the order is not in accordance with the law but the subordinate officer who carries out that order in good faith, on account of a mistake of fact and not on ground of mistake of law, believes himself to be bound by law to carry out such an order, that a further question arises as to whether the subordinate officer will not still get protection of section 76 IPC, 1860, because of his mistake of fact. Bound by law- Respondeat Superior- Act done by the order of a superior Only obedience to legal orders comes within the ambit still held responsible but punishment mitigated. Obedience of illegal orders is not justified, The servant should exercise his own judgment. LOC LAW OF CRIMES 39  - For illegal acts, however, neither the orders of a parent nor a master nor a superior will furnish any defence. The maxim respondeat superior has no application to such a case. - Nothing but fear of instant death is a defence for a policeman who tortures anyone by order of a superior. MH GEORGE V STATE OF MAHARASHTRA STATE OF WB V SHEW MANGAL SINGH - Here mistake of law and illegal act but still got the protection under this as the mistake of law was caused by a mistake of fact which they though they were bound by law to do so. - There are, however, enough indications in Shew Mangal Singh's case and in sections 76 and 79 IPC, 1860, that if the subordinate due to a mistake of fact and not due to a mistake of law honestly believed that he was bound or justified by law in carrying out the superior order which though not manifestly illegal was nevertheless illegal, perhaps he would still get the benefit of superior order. - JUDGMENT- It was highlighted in the present case that an officer cannot be held liable for obeying the instructions of the senior officers. It must be proved by the applicant that either the order was unjustifiable and was malicious or the person obeying it has committed the act beyond the scope of that order and maliciously. chaman lal, 1940 - Obedience to an illegal order can only be used in mitigation of punishment but cannot be used as a complete defence. SEC 15 BNS / SEC 77 IPC Act of Judge when acting judicially. LOC LAW OF CRIMES 40 15. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. Afford protection in two broad categories first category fall those acts which are within the limits of his jurisdiction. - Irregular proceeding in the exercise of power vested on him by law second category encompasses those acts which may not be within the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done by him, believing in good faith that he had jurisdiction to do them or order them to be done - In good faith exceeds jurisdiction where he has no lawful powers Protects judges from criminal process just as judicial officers protection act of 1850 saved them from civil suits. Surendra Kumar Bhatia v. Kanhaiya lal o A collector exercised powers of inquiry and awarded order of land acquisition act, it was held that he was not acting judicially and he is not a judge. o A Collector who exercises powers of enquiry and award under the Land Acquisition Act, 1894 is not acting judicially because he is not a judge. He is not entitled to the protection of section 77. o Can't give an executable decree. So not under definition of judge and judicial order ES Sanjeeva Rao v. CBI Mumbai o Regional provident fund commissioner while passing and order under section 7A of 1952 is entitled to get protection under S77 of IPC and S3(1) of Judges Protection act. o Would also fall under definition of judge and judicial order R SUBBA RAO V ADVOCATE GENERAL SEC 16 BNS / 78 IPC Act done pursuant to judgment or order of Court LOC LAW OF CRIMES 41 —Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction. - This section is merely a corollary to section 77 - It extends S77 - It affords protection to officers acting under the authority of a judgment, or order of a Court of Justice. - It differs from section 77 on the question of jurisdiction. Here, the officer is protected in carrying out an order of a Court which may have no jurisdiction at all, if he believed that the Court had jurisdiction; whereas under section 77 the Judge must be acting within his jurisdiction to be protected by it. - Mistake of law can be pleaded as a defence under this section. Sec 17 BNS/ 79 IPC Act done by a person justified, or by mistake of fact believing himself justified, by law.— Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. Illustration. A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. The important necessities for this section are The person be justified by law There should be some legal justification The person should be under mistake of fact to believe that he is justified to do something Difference between S79 and S76 Justified by law S79- 17 Bound by law S76- 14 Here a person is justified by law to do a a person is bound by law to do a thing thing Legal justification exists Legal obligation to do a thing exists Under a mistake of fact to do a thing it Mistake of fact is attracted since a is done person imagines that legal binding exists - a real or supposed legal obligation LOC LAW OF CRIMES 42  - 76- OBLIGATION, 79 - RIGHT - Under both (these sections) there must be a bona fide intention to advance the law, manifested by the circumstances attending the act which is the subject of charge; and the party accused cannot allege generally that he had a good motive, but must allege specifically that he believed in good faith that he was bound by law (section 76) to do as he did, or that being empowered by law (section 79) to act in the matter, he had acted to the best of his judgment exerted in good faith. SECTION 79- - Unless there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the colour of his office. - In Bhanuprasad Hariprasad Dave's case, wherein the allegations against the police officer was of taking advantage of his position and attempting to coerce a person to give him a bribe. The plea of color of duty was negatived by the Supreme Court. - GOOD FAITH- The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. 'Good faith' requires not logical infallibility but due care and attention. The question of good faith is always a question of fact to be determined in accordance with the proved facts and circumstances of each case. MISTAKE OF FACT - At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. - Ignorantia facti doth excusat, for such ignorance many times makes the act itself morally involuntary. - where the accused while helping the police stopped a cart which they in good faith believed to be carrying smuggled rice but ultimately their suspicion proved to be incorrect, it was held that they LOC LAW OF CRIMES 43  could not be prosecuted for wrongful restraint under section 341 as their case was covered by section 79 IPC, 1860. MISTAKE OF LAW - Mistake in point of law in a criminal case is no defence. - Mistake of law caused by ignorance or carelessness, he must abide by the consequences of his error; it is not competent to him to aver in a Court of Justice that he was ignorant of the law of the land, and no Court of Justice is at liberty to receive such a plea. - The maxim ignorantia juris non excusat, in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the land. - Legal presumption of that everyones knows the law is because there is no knowing of the extent to which the excuse of ignorance of law can be carried out. When determining if an offense is justified due to a mistake of fact or law, the following rules apply:(Tustipada Mandal, (1950) Cut. 75.) 1. If an act is clearly criminal and more severely punished under certain circumstances, ignorance of those circumstances does not excuse the aggravated offense. 2. If an act is innocent unless certain circumstances exist, ignorance of those circumstances can be a valid defense. 3. The defendant must be completely unaware of the circumstances that change the nature of the act or genuinely believe those circumstances do not exist. 4. If an act is wrong but only criminal under specific conditions, ignorance of those conditions is not a defense. 5. If a statute makes an act punishable under specific circumstances, it depends on the statute whether the person doing the act is responsible for knowing those circumstances. In such cases, their knowledge is irrelevant. Chirangi v. state Killed his son as he mistook him as a tiger LOC LAW OF CRIMES 44  - Where an accused owing to a defect in his vision and the effect of a fall bona fide believed that his son of whom he was very fond was a tiger and caused fatal injuries to him with an axe in a moment of delusion, he was protected under this section, and his act being done under a bona fide mistake, he could not be convicted of an offence of murder. Waryam Singh v. Emperor Killed a person as he mistook him as a ghost - In both the above cases hallucinations was found to be justifiable due to medical history. Gopalia kailaiya (kai-lai-ya)v. State (1923) In this case the police had a warrant against a person. However, at the time of the arrest they arrested the wrong person. The person who was wrongly arrested filed a complaint. However, the police officer was not held liable since it was held to be a mistake of fact. Pitchai v State, (2004) 13 SCC 579 Deceased attempted to steal coconut from the garden of which accused was a watchman. Accused contended that, he while discharging his duties as a watchman in good faith and under mistake of fact inflicted an injury which unfortunately resulted in the death of the victim. Explaining the applicability of section 79, Supreme Court held that there was no mistake of fact which could even if existed or found true could warrant or justify in law, the imposition of such a serious injury as found inflicted on the victim. Bailey's Case, (1800) Russ. & Ry 1. Although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the passing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save him from punishment. Sec 18 BNS/ 80 IPC Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Illustration. A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence. LOC LAW OF CRIMES 45 Essential to claim the benefit of this provision- Atmendra v State of Karnataka, 1998 o that the act in question was without any criminal intention or knowledge o that the lawful act was being done in a lawful manner by lawful means; and o that act was being done with proper care and caution. Accident o An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. o An accident happens out of the ordinary course of things. Patreswar Basumatary v State of Assam - Where two brothers were sleeping together and one of them while in a state of semi-sleep felt that somebody was throttling him, picked up the dao, kept on the head of the bed, and administered a blow which was received by his sleeping brother who died, there being neither intention nor motive, the accused was let off under this section. His act was not voluntary. LOC LAW OF CRIMES 46  o Injury is said to be accidentally caused whensoever it is neither willfully or negligently caused Raja Ram 1977: Where the accused fired a shot at his assailant who escaped but four other persons were injured and one of them unfortunately expired, it was held that the accused was not liable for the fatal injury to an innocent person as his case fell within the scope of section 80 read with sections 96 and 100, IPC, 1860 Jacob Mathew v State of Punjab, AIR 2005 SC 3180 To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged and that burden never shifts (burden will lie on prosecution at all times to prove that ingredients of offence with which accused has been charged exist.) Mahadev v State of MP, 2006 Cr LJ 4246 (MP) Deceased allegedly dashed by offending tractor and crushed by its wheels. The Steering bolt of steering wheel was evidently broken all of a sudden. Offending vehicle became free and was out of control. Incident was merely an accident and not an act of rashness or negligence on the part of the accused. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 Where the act of the accused is itself of criminal nature, the protection of this section cannot be availed. In this case, the accused picked up his gun, unlocked it, loaded it with cartridges, aimed at the chest of the victim from a close range of 4–5 feet and shot it. Quite naturally this section was held to be not applicable. There could be no suggestion of an accident. Girish Saikia v State of Assam, 1993 Cr LJ 3808 (Gau). The accused was attacked when he was asleep at night by his brother who tried to strangulate him. Apprehending imminent death, the accused aimed a blow at his assailant brother with a piece of bamboo on which he could lay hand and the blow accidentally struck the head of his intervening father as a result of which he ultimately died. It was held that the accused exercised his lawful right of self- defence and the blow fell on the head of his father by accident and misfortune and he was fully protected by sections 80 and 106. His conviction under section 304 Part II was set aside. Sec 19 BNS/ 81 IPC 19. Act likely to cause harm, but done without criminal intent, and to prevent other harm.— Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. LOC LAW OF CRIMES 47 Explanation.—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustrations. (a) A, the captain of a vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C. (b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence. An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done o only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, o that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided LOC LAW OF CRIMES 48  test really is like this: there must be a situation in which the accused is confronted with a grave danger and he has no choice but to commit the lesser harm may be even to an innocent person, in order to avoid the greater harm the choice is between two evils and the accused chooses the lesser evil Asaram Bapu v. Aman Singh In order to prevent greater harm smaller harm maybe done Wood v. Richard If any person has to choose between what is more harm and what is less harm, he should always choose lesser harm Bostan, (1892) 17 Bom 626. Where a Chief Constable not in his uniform came to a fire and wished to force his way past the military sentries placed round it, was kicked by a sentry, it was held that as the sentry did not know who he was, the kick was justifiable for