Introduction to Law of Crimes

a) Definition and Nature of Crime

b) Elements of Crime & Stages in commission of Crime
c) Protection to the accused- Doctrine of Double Jeopardy, Presumption
of Innocence, Doctrine of self-incrimination, Right to legal aid,
Protection against illegal arrest, detention and custodial death
d) Jurisdiction & Limitation – Personal Jurisdiction, Territorial
Jurisdiction(Intra & Extra), Admiralty Jurisdiction

Unit- II General Explanations and Group Liability

a) Important Definitions
b) Joint Liability, Common Intention & Common Object
c) Vicarious Liability and Strict Liability in Crime
d) Punishment – Theories, Kinds & Limits
Structure of Indian Penal Code, 1860

On the recommendation of 1st Law Commission Report 1834, Enacted by: Imperial
Legislative Council .Enacted on: 6 October 1860, Commenced: 1 January 1862,
Assented to: 6 October 1860

Unit- I Introduction to Law of Crimes

IPC 511 Original section +62 a) Definition and Nature of Crime
Section =573 b) Elements of Crime & Stages in
Out of 573-21 Sections commission of Crime
deleted =552 c) Protection to the accused-
Originally 23 Chapters Doctrine of Double Jeopardy,
+3Chapters added =26 Total Presumption of Innocence,
Chapters Doctrine of self-incrimination,
Right to legal aid, Protection
against illegal arrest, detention
and custodial death
d) Jurisdiction & Limitation –
Personal Jurisdiction, Territorial
Jurisdiction(Intra & Extra),
Admiralty Jurisdiction

Unit- II General Explanations and

Group Liability
a) Important Definitions
b) Joint Liability, Common
Intention & Common Object
c) Vicarious Liability and Strict
Liability in Crime
d) Punishment – Theories, Kinds
& Limits

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 01 Introduction 13 Offences Relating to Weights and
02 General Explanations Measures
03 Of Punishments 14 Offences Affecting Public Health,
04 General Exceptions Safety, Convenience, Decency and Morals
05 Abetment 15 Offences Relating to Religion
05a Criminal Conspiracy 16 Offences Affecting the Human Body
06 Offences Against The 17 Offences Against Property
State 18 Offences Relating to Documents and
07 Offences Relating to Property Marks
the Armed Forces 19 Criminal Breach of Contracts of
08 Offences Against Public Service
Tranquillity 20 Offences Relating to Marriage
09 Offences By or Relating 20a Cruelty by Husband or Husbands
to Public Servants Relatives
09a Offences Relating to 21 Defamation
Elections 22 Criminal Intimidation, Insult and
10 Contempts of Authority Annoyance
of Public Servants 23 Attempts to Commit Offences
11 False Evidence and
Offences Against Public
Justice
12 Offences Relating to
the Coin and Govt. Stamps

First Law Commission, chaired by Thomas Babington Macaulay in 1834 and was
submitted to Governor-General of India Council in 1835. Based on Napoleonic
Code and from Edward Livingston's Louisiana Civil Code of 1825.

The first final draft of the Indian Penal Code was submitted to the Governor-General
of India in Council in 1837, but the draft was again revised.

The drafting was completed in 1850 and the Code was presented to the Legislative
Council in 1856, but it did not take its place on the statute book of British India until a
generation later, following the Indian Rebellion of 1857. The draft then underwent a
very careful revision at the hands of Barnes Peacock, who later became the first
Chief Justice of the Calcutta High Court, and the future puisne judges of the Calcutta
High Court, who were members of the Legislative Council, and was passed into law
on 6 October 1860.[4] The Code came into operation on 1 January 1862. Macaulay
did not survive to see the penal code he wrote come into force, having died near the
end of 1859. The code came into force in Jammu and Kashmir on 31 October 2019,
by virtue of the Jammu and Kashmir Reorganisation Act, 2019, and replaced the
state's Ranbir Penal Code.[5]

II.JUDICIARY IN ANCIENT INDIA In the Vedic period when the social and state
information was yet to be completed Dharma was the main source or sole source of

2
Law. Sacred law (Dharma), evidence (Vyavahára), history (Charitra), and edicts of
kings (Rájasásana) are the four legs of 1 Ancient smriti writers were also fully aware
of various purposes served by punishing the criminals. Manu, Yajnavalka, and
Brihaspati state that there were four methods of punishment namely, by gentle
admonition, by severe re proof, by fine and by corporal punishment and declared
that these punishments shall be inflicted separately or together according to the
nature of the offence. The punishment served four main purposes, to meet the urge
of the person suffered, for revenge or retaliation, as deterrent and preventive
measures and for reformation or redemption of the evil doers. Rama Jois, Legal
and Constitutional History of India: Ancient, Judicial and Constitutional
System, 1984, M.P Singh Outlines of Indian Legal & Constitutional History 2006

III.CRIMINAL JUSTICE IN ANCEINT INDIA The development of both Criminal and

civil Legal systems in India date back to the ancient period to a land that was ruled
by various kings of India right from 3000 B.C.E to 1001 C.E and beyond. This
country had a similar system of law for well over 4000 years. No other country in the
world can claim such a credit and even though this land was divided into hundreds of
small political kingdoms the law of the land called Neethi and Dharma given by the
great Hindu law giver Manu were common or similar in nature The Dharamsutras
and the Kautilya‟s Arthashastra, however, present a more detailed and well
developed system of criminal adjudication prevailing in their time. The Nitishastra
mentions King as the fountain of justice and it was his sacred duty to punish the
wrong-doers and if he flinched from discharging this duty, he was bound to go to hell.
In early society the victim had himself (as there was no State or other authority) to
punish the offender through retaliatory and revengeful methods; this was, naturally,
governed by chance and personal passion. Even in the advanced Rig-Vedic period
there is a mention that punishment of a thief rested with the very person wronged.
Group life necessitated consensus on ideals and the formulation of rules of behavior
to be followed by its members. These rules defined the appropriate behavior and the
action that was to be taken when members did not obey the rules.

VII.SALIENT FEATURES OF MUSLIM LAW OF CRIME The traditional Muslim

criminal law broadly classified crimes under three heads:(i) crimes against Gods (ii)
crimes against sovereigns and(iii) crime against private individuals. The first category
included such crimes as apostacy, drinking intoxicating .liquors adultery etc. The
third category included such crimes as theft, highway robbery and robbery with
murder etc., i.e. offences against the human body. Accordingly, the Muslim criminal
law arranged punishments for various offences into four categories, viz.,

Hadd, Classification of Crime/ Limit

Tazeer, Neither Hadd or Kisa (Discretionary Punishment)

Kisa, an eye for an eye

Diya Blood money

3
Criminal Courts

• Supreme Court of India Art 124-147(28th January 1950)TilakMarg, Mandi

House, New Delhi, Delhi 110001 (33+1 Judges) Federal Court1 October 1937-The
Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for
certain British territories,14 August 1833,Authorized by Judicial Committee Act 1833
and Judicial Committee Act 1844-the Abolition of Privy Council Jurisdiction Act 1949

• The first Chief Justice of India was H. J. Kania.

• DhananJay Y. Candrachud. 9th Nov 2022

Original(Art 131), Appellate(Art 132,133,134) and Advisory jurisdictions (Art 143)

Supreme Court of India: Any Sentence

High Courts: any Sentence (Article 214-231) (sec 28 Cr.PC)

Orissa High Court”26 July 1948- 27 (20 Permanent + 7 Additional Judges ) Bira
Kishore Ray 26 July 1948 – 30 October 1951- Justice Dr S. Muralidhar 4th jan 2021

Subordinate Judiciary: (233-237)

Section 26

Court of Session (Section 9) (sec 28): A Sessions Judge or Additional Sessions

Judge may pass any sentence authorised by law; but any sentence of death passed
by any such Judge shall be subject to confirmation by the High Court.

An Assistant Sessions Judge may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding
ten years.

Chapter 28 – Submission Of Death Sentences For Confirmation

Section 366 – Sentence of death to be submitted by Court of Session for

confirmation

Section 367 – Power to direct further inquiry to be made or additional evidence to be

taken

Section 368 – Power of High Court to confirm sentence or annul conviction

Section 369 – Confirmation or new sentence to be signed by two Judges

Section 370 – Procedure in case of difference of opinion

Section 371 – Procedure in cases submitted to High Court for confirmation

Section 29 – Sentences which Magistrates may pass

4
The Court of a Chief Judicial Magistrate (Sec 12)may pass any sentence authorised
by law except a sentence of death or of imprisonment for life or of imprisonment for a
term exceeding seven years.

The Court of a Magistrate of the first class may pass a sentence of imprisonment for
a term not exceeding three years, or of fine not exceeding ten thousand rupees, or
both.

The Court of a Magistrate of the second class may pass a sentence of imprisonment
for a term not exceeding one year, or of fine not exceeding five thousand rupees, or
of both.

The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a
Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the
Court of a Magistrate of the first class.

Special Judicial magistrate (Section 13)

(District Magistrate- Sub-Divisional Magistrate-Executive magistrate (Section 20)-

SpecialExecutive magistrate(Section 21)

Investigating Agency: Police

Police Act,1861, Code of Criminal Procedure,1973
Odisha Urban Police Act, 2003 (Odisha Act 8 of 2007) Commissionrate of Police
Prosecution and Defence
Sec: 30 Indian Advocates Act.1961. Sec: 24,25,25-A Cr.P.C
Adjudicating Body: Judiciary
Art (124- 147) (214-231) (233-237)
Incarceration Unit: Prison
Prisons Act 1894, Prisoners Act,1900
Restorative Agencies
P.O.Act 1958. JJ.Act,2015 Prisons Act, 1894, Section 59(5)(28)

Originally the Latin word crīmen meant "charge".1In 13th century Englishcrime
meant "sinfulness"2.Whether a given act or omission constitutes a crime does not
depend on the nature of that act or omission. It depends on the nature of the legal
consequences that may follow it.3Seaman v Burley [1896] 2 QB, per Lord Esher MR
at 346

Definition of crime

1
Ernest Klein, A Comprehensive Etymological Dictionary of the English Language
2
www.etymonline.com.
3
Seaman v Burley [1896] 2 QB, per Lord Esher MR at 346

5
A normative definition views crime as deviant behavior that violates prevailing
norms – cultural standards, prescribing how humans ought to behave normally. This
approach considers the complex realities surrounding the concept of crime and
seeks to understand how changing social, political, psychological, and economic
conditions may affect changing definitions of crime and the form of the legal, law-
enforcement, and penal responses made by society.

Crime is the breach of rules or laws for which some governing authority (via
mechanisms such as legal systems) can ultimately prescribe a conviction. Crimes
may also result in cautions, rehabilitation or be unenforced. Individual human
societies may each define crime and crimes differently, in different localities (state,
local, international), at different time stages of the so-called "crime", from planning,
disclosure, supposedly intended, supposedly prepared, incomplete, complete or
future proclaimed after the "crime".[citation needed]

While every crime violates the law, not every violation of the law counts as a crime;
for example: breaches of contract and of other civil law may rank as "offences" or as
"infractions". Modern societies generally regard crimes as offences against the public
or the state, as distinguished from torts (wrongs against private parties that can give
rise to a civil cause of action).

Definition of Crime:
(a) Sir William Blackstone:. “An Act committed or omitted in violation of a
‘Public Law’ forbidding or commanding it”. However, he modified his definition again
and suggested that “A crime is violation of the public ‘rights and duties’ due to the
whole community, considered as a community” (Sir William Blackstone,
Commentaries on The Laws of England.)
(b) RaffaeleGarofalo: “Crime is an immoral and harmful act that is regarded as
criminal by public opinion, because it is an injury to so much of the moral sense as is
possessed by a community- a measure which is indispensable for the adaptation of
the individual society”( RaffaeleGarofalo, Criminology, Boston, Little Brown)
a personal or social set of standards for good or bad behavior and character,
or the quality of being right and honest:
(c) John Gillin: “Crime is an act that has been shown to be actually harmful to
society, or that is believed to be socially harmful by a group of people that has the
power to enforce its beliefs, and that places such act under the ban of positive
penalties.”
(d) Bassiouni and Savitsky: “A socially dangerous act (commission or omission)
provided for by the criminal law, which infringes the Soviet social or state system, the
social economics system, socialist property, and the other rights of citizens, or any
other socially dangerous acts provided for by the criminal law, which infringes the
socialist legal order, shall be deemed to be a crime.”( The Criminal Justice System of
USSR, Charles C.Thomas, USA, 1979.)
(e) E.M. Wolfgang: “violation of prevalent group norms, including conduct”, an
act by a member ; of a given social group, which by the rest of the members of that
group is regarded as so injurious as showing such a degree of anti- social attitude in

6
the actor that the group publicity, overtly and collectively reacts by trying to abrogate
some of the rights.
(f) John Austin :“A wrong which is pursued by the Sovereign or his subordinate
is a crime (public wrong). A wrong which is pursued at the discretion of the injured
party and his representatives is a civil wrong (private wrong) ” [John Austin, Lectures
on Jurisprudence Status, Edn, 1920]
(g) Kenny : “Crimes are wrongs whose sanction is punitive, and is in no way
remissible by any private person, but is remissible by the crown alone, if remissible
at all.”( Russel On Crime, Vol. 1,12th Edn)
(h) Paul Tappann: Crime is an intentional act or omission in violation of Criminal
Law ( Statutory and case law) committed without defence or justification and
sanctioned by the State as a felony or misdemeanour.
(i) Stephen:"Crime is an act which is forbidden by law and revolting to the moral
sentiments of the society".
(j) Elliot and Merill: A crime ipso facto implies a disturbance in a social
relationship and a social definition as to what such disturbance is.
(k) Barners and Teeters: The term crime technically means a form of anti-social
behavior that has violated public sentiment to such an extent as to be forbidden by
statute.

CRIME TORT
1 The primary objective of The primary objective is to protect/ restore
criminal Law is to protect civil rights of individual and indemnify on
the life and property of the the event of any breach by award of
subjects and secure law damage and compensation.
7
 and order in the society
2 Branch of Public Criminal Branch of Private Civil Law
Law
3 Penal Laws are Specific Tort law developed through Common law
Precedents
4 A wrong against the State A wrong against the Individual
5 Cognizance is taken by Affected Claimant Files the Case
the state
6 Defendant ( Accused) is Defendant will be sued in Civil Court for
prosecuted in the criminal Civil action
Court with specific
Charges
7 After prosecution, If The Defendant pay damage/compensation
Found guilty the Accused To the Claimant
is punished or acquitted
8 The Burden of proof is on The Burden of proof is on the Claimant and
the prosecution and has standard of proof is based on ‘balance of
to be proved beyond probabilities’.
reasonable doubt.

8
nullumcrimen sine lege

Nullapoena sine lege

Autrefois Acquit and Autrefois Convict

Doctrine of mens-rea:Earlier in the 12th century Mens Rea was not an element of
crime. The wrongdoers used to get punished regardless the fact that whether the act
done was intentional or not. The concept of Mens Rea was first introduced in the
17th century along with the Latin maxim ‘actusreus non facitreum, nisi mens sit
rea’ which means ‘there can be no crime without a guilty mind’. This maxim cleared
the conflict that a crime can only be said to be constituted where the action was done
in accordance of a guilty intention.

The test for the existence of mensrea may be:

(a) subjective, where the court must be satisfied that the accused actually
had the requisite mental element present in his or her mind at the relevant
time (for purposely, knowingly, recklessly etc)
(b) objective, where the requisite mensrea element is imputed to the
accused, on the basis that a reasonable person would have had the mental
element in the same circumstances (for negligence); or
(c) hybrid, where the test is both subjective and objective.
ACT

Exhortation/ triggering of Will accompanied by physical action either to commit or

omit.

Will is the volition of mind with an element of mental judgment

Free consent is one of the manifestation of Will.

Intention is the direction of conduct towards the object, chosen upon considering the
motive which suggests the choice.

9
Sir James Stephens : A History of Criminal Law of England. Vol:2 (1853) pp 100,101

In DPP v Smith (1961) AC 290, the test was that a person was taken to foresee and
intend the natural and probable consequences of his or her acts.

In Hyam v DPP (1974) 2 All E.R. 41 the House of Lords accepted that the accused
'intends' the consequences of his actions if it is 'highly probable' that those
consequences will arise from the actions.

In R v Moloney (1985) 1 All ER 1025 it could be assumed that if the accused

realized that the results of his action were the 'natural consequences' of the action,

R v Woollin (1997) 4 All ER 103 (HL) 'find intent' rather than 'infer intent'

Section 39 VOLUNTARILY

A person is said to cause an effect "voluntarily"

when he causes it by means whereby he intended to cause it, or

by means which, at the time of employing those means, he knew or had

reason to believe to be likely to cause it.

Intentionally

He knew or had reason to believe to be likely to cause.

Rules of Voluntary act

1. It has been borrowed from the English principles of “Willfully”

2. It is based on the maxim: That a man is presumed to intend and know the
natural and probable consequence of his act
3. It gives a constructed meaning and not the ordinary meaning
4. It has been defined with respect to causation of effect and not in reference to
volition
5. Acts over which a person has no physical or mental control are not voluntary.
6. All intentional acts are voluntary but all Voluntary acts may not be intentional

In defining the voluntary act the test of Intention is applied

a) Express Intention: If he expects a given consequence as the result of his

act.

b) Implied: If he has the knowledge of likelyhood of the consequence

Knowledge: Awareness of the consequence of an act even though he may

not intend it

Knowledge about the nature of his act or

10
Knowledge about the consequence of the act.

Sherras v. De.Rutzen (1895) All ER 1167

Voluntarily:39,

321-335, 394

Dishonestly & Fraudulently;Section 209, 246, 247, 415, 421, 422, 423, 424, 464,
471 and 496.

(1) Corruptly-Section 196, 198, 200, 219 and 220 of

(2) Malignantly:219, 220 and 270
(3) Wantonly:153
(4) Rashly and Negligently.:279, 280, 283 to 289,
304A and 336 to 338

Stages of crime

In general, an offence passes through the following stages -

Conceiving the idea of performing a legally defined harm

- It is immaterial whether the person conceiving such an idea knows that itis
illegal to perform it. At this stage, there is no action taken to harm anybody
and it is not a crime to merely think of doing harmfulactivity because the
person thinking it may not even want to actually do it. For example, merely
thinking killing 1000s of peopleinstantaneously, is not a crime.

Deliberation - At this stage, a person consolidates his devious ideas and

identifys ways of doing it. Again, there is no action taken andthere is no harm
done to anybody nor is there any intention to cause injury to anybody. It is still
in the thinking stage and is not a crime.For example, merely thinking about
how to build a device that can kill 1000s of people instantaneously, is not a
crime.From a legal standpoint the above two stages are inconsequential
because man being a thoughtful animal, he thinks aboutinnumerable things
without any material result.

Intention (Mens Rea) - This stage is a significant progress from mere

deliberation towards actual commission of the crime. At thisstage, the person
has made up his mind to actually implement or execute his devious plans.
There is an intention to cause harm buthe hasn't yet taken any action that
manifests his intention. Further, there is no way to prove an intention because
even devil can't read ahuman mind. Thus, this is not considered a crime. For
example, intention to kill anyone is not a crime in itself. However, it is
anessential ingredient of crime because without intention to cause harm, there
can be no crime. On the other hand, even a thoughtlessact, without any
deliberation, can be a crime if there is an intention to cause harm.

11
Preparation - As this stage, the intention to cause harms starts manifesting
itself in the form of physical actions. Preparation consists of arranging or
building things that are needed to commit the crime. For example, purchasing
poison. However, it is possible for theperson to abandon his course of action
at this stage without causing any harm to anyone. In general, preparation is
not considered acrime because it cannot be proved beyond doubt the goal of
the preparation. For example, purchasing knife with an intention to
killsomeone is not a crime because it cannot be determined whether the knife
was bought to kill someone or to chop vegetables.However, there are certain
exceptions where even preparation for committing an offence is crime. These
are -Sec 122 - Collecting arms with an intention of waging war against the
Govt. of India. Sec 126 - Preparing to commit depredation on territories of any
power in alliance or at peace with the Govt. of India. Sec 235 - Counterfeiting
operations for currency. Sec 399 - Preparation to commit dacoity.

Attempt- This stage is attained by performing physical actions that, if left

unstopped, cause or are bound to cause injury to someone.The actions clearly
show that the person has absolutely no intention to abandon his plan and if
the person is left unrestricted, he willcomplete the commission of the crime.
Since the intention of the person can be determined without doubt from his
actions, an attemptto commit a crime is considered a crime because if left
unpunished, crime is bound to happen and prevention of crime is
equallyimportant for a healthy society.

Actual commission of the offence - This is the final stage where the crime is
actually done.

Distinction between Preparation and Attempt

There is a very fine line between preparation and attempt. While, IPC does not
define either of them, it is very important to distinguishbetween them because
attempt is a crime but preparation is not. Both, Preparation and Attempt are
physical manifestations of thecriminal intention. But attempt goes a lot farther
than preparation towards the actual happening of crime. While in Preparation,
there is apossibility that the person may abandon his plan, but attempt leaves
no room for that. For example, keeping a pistol in pocket andlooking for the
enemy to kill is a preparation because one can abandon the plan anytime, but
taking out the piston and pulling thetrigger is attempt because it leaves no
room for turning back.. Thus, in general, Preparation involves collecting
material, resources, andplanning for committing an act while attempt signifies
a direct movement towards commission after the preparations are
made.Ordinarily, to constitute an attempt the following elements are needed –

1. mensrea to commit the crime

2. an act which constitutes the actusreus of a criminal attempt

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3. failure in accomplishment

In the case of R vsCheesman 1862, Lord Blackburn identified a key difference

between the two. He says that if the actual transactionhas commenced which
would have ended in the crime if not interrupted, there is clearly an attempt to
commit the crime.However, this is not the only criteria for determining an
attempt. The following are four tests that come in handy in distinguishing
between the two –

1.Last Step Test or Proximity Rule

As per this test, anything short of last step is preparation and not attempt.
This is because as long as there is a step remainingfor completion of the
crime, the person can abandon it.

For example, A obtains poison to kill B and mixes it with food that B
issupposed to eat. But he has not yet given the food to B. Thus, it is still
preparation. As soon as he keeps the food on the tablefrom where B eats
everyday, the last step is done and it becomes an attempt.In the case of

R vsRiyasat Ali 1881, the accused gave orders to print forms that looked like
they were from Bengal CoalCompany. He proofread the samples two times and
gave orders for correction as well so that they would appear exactly asforms
of the said company. At this time he was arrested for attempt to make false
document under section 464. However, it washeld that it was not an attempt
because the name of the company and the seal were not put on the forms and
until that wasdone, the forgery would not be complete.In the case of

Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna

University for MA exam and he supplied documents proving that he was a
graduate and was working as a headmaster of a school. Later on it was found
that thedocuments were fake. It was held that it was an attempt to cheat
because he had done everything towards achieving his goal.

2.Indispensable Element Test or Theory of Impossibility- As per this test, all of

indispensable elements must be present to equal attempt. For example, a
person has the gun to kill but he forgot the bullets. In this case, it would not be
an attempt. Further, he goes to place where victim should be but is not then he
isnot guilty of attempt under this test. In other words, if there is something a
person needs to commit the crime but it is not present,then there is not an
attempt. This test has generated a lot of controversy ever since it was laid in
the case of

Queen vs Collins,where it was held that a pickpocket was not guilty of attempt
even when he put his hand into the pocket of someone with anintention to
steal but did not find anything. Similarly, in the case of

13
R vsMcPherson 1857, the accused was held not guilty of attempting to break
into a building and steal goods because the goods were not there.However,
these cases were overruled in

R vs King 1892 , where the accused was convicted for attempting to steal from
thehand bag of a woman although there was nothing in the bag. Illustration (b)
of section 511 is based on this decision.

3.Interruption Test

If the action proves that the person would have gone through with the plan if
not for the interruption such as arrest, then it is anattempt. For example, a
person points a gun at another and is about to pull the trigger. He is
overpowered and was stoppedfrom pulling the trigger. This shows that if he
had not been interrupted, he would have committed the crime and he is thus
guiltyof attempt even though the last step of the crime has not be performed.

4. Unequivocality Test or On the job Theory

If a person does something that shows his commitment to follow through and
commit the crime then it is an attempt. For example, in the case of

State of Mah.vsMohd. Yakub 1980, three persons were found with a truck
loaded with silver near thesea dock. Further, the sound of engine of a
mechanized boat was heard from a nearby creek. They were convicted of
attempting to smuggle silver.

J Sarkaria, observed that what constitutes at attempt is a mixed question of

law and the facts of acase. Attempt is done when the culprit takes deliberate
and overt steps that show an unequivocal intention to commit theoffence even
if the step is not the penultimate one.

Attempt to commit murder

Section 307 of IPC states that whoever does any act with intention or
knowledge, and under such circumstances, that, if by that act hecaused death
he would be guilty of murder, shall be punished with imprisonment of either
description for a term which may extend toten years, and shall also be liable to
fine; and if hurt is caused to any person by such act the offender shall be
either liable toimprisonment for life.This means that if a person intentionally
does something to kill another and if the other person is not killed, he would
be liable for attempt to murder. However, his action must be capable of killing.
For example, if a person picks up a pebble and throws it on someonesaying, "I
will kill you", it is not attempt to murder because it is not possible to kill
someone with a pebble. But if someone swings a thicklathi and misses the
head of another person, it is attempt to murder.Illustrations -1. A shoots at Z

14
with intention to kill him, under such circumstances that, if death ensued. A
would be guilty of murder. A is liable topunishment under this section.

2. A, with the intention of causing the death of a child of tender years, exposes
it is a desert place. A has committed the offencedefined by this section,
though the death of the child does not ensue.

3. A, intending to murder Z, buys a gun and loads it. A has not yet committed
the offence. A fires the gun at Z. He has committedthe offence defined in this
section, and if by such firing he wounds Z, he is liable to the punishment
provided by the latter partof the first paragraph of ] this section.

4. A, intending to murder Z by poison, purchases poison and mixes the same

with food which remains in A's keeping; A has notyet committed the offence
defined in this section. A places the food on Z' s table or delivers it to Z's
servant to place it on Z'stable. A has committed the offence defined in this
section.

Is Injury necessary

From the wordings of this section, it is clear that a person is liable under this
section even if no injury is caused to anyone. However, if hurt is caused, the
punishment is more severe. Further, as held in the case of

State ofMah.vsBalramBamaPatil 1983, SC held thatfor conviction under sec

307, it is not necessary that a bodily injury capable of causing death must be
inflicted but the nature of theinjury can assist in determining the intention of
the accused. Thus, this section makes a distinction between the act of the
accused andits result.

Whether act committed must be capable of causing death

In VasudevGogte's Case 1932, the accused fired two shots at point blank
range at the Governor of Bombay. However, it failed toproduce any result
because of defect in ammunition or intervention of leather wallet and currency.
It was held that to support convictionunder this section the accused must
have done the act with intention or knowledge that but for any unforeseen
intervention, it wouldcause death. Thus, he was held guilty.

Penultimate Act not necessary

In the case of Om Prakashvs State of Punjab, AIR 1961, SC held that a person
can be held guilty under this section if his intention isto murder and in
pursuance of his intention he does an act towards its commission, even if that
act is not the penultimate act.

15
As per J BK Sharma, the intention of the culprit is the key and it must be
gathered from all the circumstances and not merely from the location,number,
and type of injury.

Section 307, 308, 309 and Section 511

Attempts are dealt with in IPC in three ways –

1. Some sections such as 196 and 197, deal with the offence as well an attempt
for that offence.

2. Some sections such as 307 and 308 deal exclusively with an attempt of an
offence.

3. The attempts for offenses that are not dealt with in above two are covered
by section 511.Thus, a case of attempt to murder may fall under section 307 as
well as section 511. There is a conflict of opinion among the highcourts
regarding this matter.

In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is
wide enough to cover allcases of attempt including attempt to murder. It
further held that for application of section 307, the act might cause death if it
took effect and it must be capable of causing death in normal circumstances.
Otherwise, it cannot lie under 307 even if it has been committed withintention
to cause death and was likely, in the belief of the prisoner, to cause death.
Such cases may fall under section 511.

However, in the case of Queen vsNidha 1891, Allahabad HC expressed a

contrary view and held that sec 511 does not apply to attempt to murder.It also
held that section 307 is exhaustive and not narrower than section 511.

In the case of Konee1867 , it was held that for the application of section 307,
the act must be capable of causing death and must alsobe the penultimate act
in commission of the offence, but for section 511, the act may be any act in the
series of act and not necessarilythe penultimate act.

However, this view has now been overruled by SC in the case of Om

Prakashvs State of Punjab AIR 1967,where the husband tried to kill his wife by
denying her food but the wife escaped. In this case, SC held that for section
307, it is notnecessary that the act be the penultimate act and convicted the
husband under this section.

A, the licensee of a petrol pump, and his 9 yr old brother arecaught

adulterating petrol in an underground storage. Whatoffence is committed by A
and his brother?

In this case, there are two people who are doing the act - one is an adult and
one is a boy between the age of 7 and 12. Thus, as per section 83, first of all it

16
will be determined if the boy had the maturity to understand what he was
doing and what could be theconsequences of his act. If upon analyzing the
facts of the situation and cross examining the boy, it is determined that the
boy wasmature enough to understand the nature of his act, he will be treated
as an adult. In this case, as per section 34

(Act done by severalpersons in furtherance of common intention) both will be

charged with the same offence as if they had done it alone. Otherwise, the
boywill be acquitted by giving the benefit of section 83 and only the man will
be charged.Regarding the charges -1. The man is a licensee of the petrol pump
and is thus an agent of the petrol company. He is supposed to keep and sell
petrolaccording to the terms of license. Since he was caught adulterating it, he
has committed the offence of criminal breach of trustas per section 405

. However, since he is an agent, this becomes a special case and he will be

punished under section 409

,which is meant for public servant, banker, attorney, merchant or agent.The

boy is not a licensee so he cannot be charged for this offence even if he did
not get benefit of 83 as mentioned before.

2. Their actions show that they had full intention to cheat public by selling
adulterated petrol and if the police hadn't stopped them,they would have sold
the adulterated petrol. Since the whole underground tank was being
adulterated it can be safely assumedthat they had left no option to change
their intention. However, since the petrol was not sold yet, no body was
cheated andthus, they will be charged under section 511 read with attempt to
commit the office of cheating, which is defined in section415and the
punishment for which is given in Section 417

.However, the boy is neither the licensee nor is the seller of petrol. It is not
given that he was working as an employee of thelicensee of the petrol pump.
As such, he owes no fiduciary responsibility to either the licensee or to the
customers. Thus, hisinvolvement in adulterating petrol is not a crime against
the customers, nor against the company. Further, his involvement
inadulterating petrol is not a tortious act against the licensee either because
he was doing it with the consent of the licensee.Thus, even if the boy does not
get the benefit of section 83, he has not done any crime and should be
acquitted.

Rights of Accused person

The right of accused persons at different stages include:

• the rights of an arrested person before his/her trial begins,

• rights of accused in India during a court trial, and
• the rights of an arrested person in India after his/her trial is completed

17
 • Article 20 in The Constitution Of India 1949
• 20. Protection in respect of conviction for offences
• (1) No person shall be convicted of any offence except for violation of the law
in force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence
• (2) No person shall be prosecuted and punished for the same offence more
than once
• (3) No person accused of any offence shall be compelled to be a witness
against himself

Article 20

1) No Expost facto Law

2) No Double JeopardyAutrefois Acquit and Autrefois Convict

3) “Nemodebetbisvexari pro una et eademcausa” (Resjudicata)
4) No Self Incrimination

Rights of Arrested Person in India

• The Right to Appeal: (372-394 cr.PC)The rights of arrested persons include

the right to file an appeal against his conviction in a higher court.
• The Right to Humane Treatment in Prison: Accused persons have the right
to have all their human rights when in prison. Also, be subjected to humane
treatment by the prison authorities.
• PremSankar v. Delhi Administration AIR 1980 SC 1535
• The court directed UOI to look into the matter and said that handcuffing is
inhuman and violative of Article 21.
• Right to have Family Visits in Jail
• Right against solitary confinement
What are Rights of the Accused in India?
• Pre-Trial Rights of Accused in India
These are the rights of a person accused of a crime such that their freedom and
liberty are not hampered.

The first stage of a trial is the pre-trial stage. Here an FIR is filed on the basis of
which the police arrests a person, searches his property.

The stage prior to the commencement of a court trial is extremely crucial. So, any
person accused of a crime must be granted the following accused rights:

1. Right to know about the accusations and charges: Under the Criminal
Procedure Code (CrPC), 1973, the rights of an arrested person under CrPC
include to know the details of the offence and the charges filed against
him/her.( Section 50 & 50A)

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 2. Right against wrongful arrest: The rights of accused in India are provided
only in cases where a warrant is issued. Section 57 of Cr.P.C. and Article
22(2) of Constitution provides rights of accused in CrPC, that he/she must be
produced before a Judicial Magistrate within 24 hours of arrest.
3. Right to accused of privacy and protection against unlawful
searches: The police officials cannot violate the privacy of the accused on a
mere presumption of an offence. As per right of accused in India, his/her
property cannot be searched by the police without a search warrant.(Section
51 Cr.P.C)
4. Right against self-incrimination: A person cannot be compelled to be a
witness against himself as per Article 20(3) of the Indian Constitution (pdf).
5. Right against double jeopardy: A person cannot be prosecuted and
punished for the same offence more than once as per Article 20(2) of the
Constitution.
6. The Right against the ex-post facto law: The rights of accused in India also
gives a person the authority where he/she cannot be tried for an offence that
was the earlier crime and now is not. This means that the retrospective effect
law is not applicable. An act that was not a crime on the day when it was
done, cannot be considered as an offence.
7. Bail as the rights of accused in India: The right of an accused person
allows them to file a bail application to be released from jail custody. There
are three kinds of bail under Indian law- anticipatory bail 439 CrPC, interim
bail and bail by a bond. A bail application for normal bail can be filed only in
case of bailable offences. However, a person can also file an anticipatory bail
through his criminal lawyer, before his arrest.Kashmira Singh v. State of
Punjab AIR 1977 SC 2147
8. Right to legal aid: In this, the rights of an accused person allow him/her to
hire a lawyer to defend them and in case, he is not able to afford a lawyer, the
State has to provide free legal aid to him for his representation in court.
(Section 41-D crpc)

In the case of Hussainarakhatoon vs. State of Bihar 1979 SC 1360, it was

held that if any accused is not able to afford legal services then he has a right
to free legal aid at the cost of the state.

It is the duty of the State to see that the legal system promotes justice on the basis of
equal opportunity for all its citizens. It must therefore arrange to provide free legal aid
to those who cannot access justice due to economic and other disabilities. —(Art.39
A of the Constitution of India)

If the accused does not have sufficient means to engage a lawyer, the court must
provide one for the defense of the accused at the expense of the state.—(Sec. 304
of Code of Criminal Procedure,1973)

The Constitutional duty to provide legal aid arises from the time the accused is
produced before the Magistrate for the first time and continues whenever he is
produced for remand. —(Khatri II Vs. State of Bihar, (1981) 1SCC; 1981 SCC (Cri)
228; 1981 Cri. LJ 470)

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A person entitled to appeal against his/her sentence has the right to ask for a
counsel, to prepare and argue the appeal. —(MadavHayavadanraoHoskot Vs. State
of Maharastra (1978)3 SCC 544) (Art. 142 of the Constitution r/w Articles 21 and 39A
of Indian Constitution )

Services offered by the Legal Services Authority:

1.Payment of court and other process fee;

2. Charges for preparing, drafting and filing of any legal proceedings;

3.Charges of a legal practitioner or legal advisor;

4. Costs of obtaining decrees, judgments, orders or any other documents in a

legal proceeding;

5.Costs of paper work, including printing, translation etc.

Duties of the Police and the Courts:

The police must inform the nearest Legal Aid Committee about the arrest of a
person immediately after such arrest.

—(SheelaBarse V. State of Maharashtra)

The Magistrates and sessions judges must inform every accused who
appears before them and who is not represented by a lawyer on account of
his poverty or indigence that he is entitled to free legal services at the cost of
the State.

Failure to provide legal aid to an indigent accused, unless it was refused,

would vitiate the trial. It might even result in setting aside a conviction and
sentence. —(Suk Das Vs. Union Territory of Arunachal Pradesh (1986) 2
SCC 401; 1986 SCC (Cri) 166)

When can Legal services be rejected?

If the applicant

- has adequate means to access justice;

- does not fulfill the eligibility criteria;

20
- has no merits in his application requiring legal action.

Cases for which legal aid is not available:

1. Cases in respect of defamation, malicious prosecution, contempt of court,

perjury etc.

2. Proceedings relating to election;

3.Cases where the fine imposed is not more than Rs.50/-;

4.Economic offences and offences against social laws;

5.Cases where the person seeking legal aid is not directly concerned with the
proceedings and whose interests will not be affected.

When can the legal services be withdrawn?

The legal services committee can with draw the services if,

1. the aid is obtained through misrepresentation or fraud;

2. any material change occurs in the circumstances of the aided person;

3. there is misconduct, misbehavior or negligence on the part of the aided

person;

4. the aided person does not cooperate with the allotted advocate;

5. the aided persons appoints another legal practitioner;

6. the aided person dies, except in civil cases;

7. the proceedings amount to misusing the process of law or of legal service.

Who is entitled to free legal aid?

Any person, who is:

1. a member of the scheduled castes or tribes;

2. any person belonging to the Schedule caste/tribe, persons suffering from

natural calamity, industrial worker, children, insane person, handicap, persons
in custody and those having annual income less than Rs 1 lakh were entitled

21
 to avail free legal aid

3. a victim of trafficking in human beings or beggar;

4.disabled, including mentally disabled;

5. a woman or child;

6. a victim of mass disaster, ethnic violence, caste atrocity, flood, drought,

earth quake, industrial

disaster and other cases of undeserved want;

7. an industrial workman;

8. in custody, including protective custody;

9. facing a charge which might result in imprisonment; —(Khatri II Vs. State of

Bihar, (1981) 1SCC); and

10.unable to engage a lawyer and secure legal services on account of

reasons such as poverty, indigence, and incommunicado situation;

11. in cases of great public importance;

12. special cases considered

deserving of legal services.

The Concept of LokAdalat:

LokAdalat is judicial body set up for the purpose of facilitating peaceful

resolution of disputes between the litigating parties. It has the powers of an
ordinary civil court, like summoning, examining evidence etc. Its orders are
like any court orders, yet the parties cannot appeal against such orders.
LokAdalat can resolve all matters, except criminal cases that which are non-
compoundable. Either of the parties to litigation can make an application to
the court for transferring the case to a lokadalat. Where no compromise or
settlement is made by the lokadalat, such a case is transferred to the court
and that court deals with the litigation from the stage the lokadalat had
reached.

9. Right to a free and expeditious trial: The rights of accused in India has the
right to fair trial in India and an expeditious trial, which is free of any bias or
prejudice.

• Rights of the Accused during Trial

22
There are many rights of accused persons in India provided when their trial is
ongoing in the court. It has been observed that the State has to ensure that due
process of law is followed.

The accused gets a quick and impartial trial, the accused is not subjected to torture
or forced to implicate himself. The rights of the accused during the trial include the
following:

1. The Right to be present during a trial: Section 273 of the Code provides
that all evidence and statements must be recorded in the presence of the
accused or his criminal lawyer.
2. Right to get Copies of Documents: It comes under the rights of accused
persons in criminal cases to receive copies of all the documents filed by the
prosecutor in relation to the case.
3. Right to be considered Innocent till proven guilty: The accused has the
right to be considered innocent until his guilt is proven in court on the basis of
evidence and statements by witnesses.
4. The Right to be present at the trial: The accused person has the right to be
present during his trial and have testimony presented in front of him.
5. Right to cross-examination: It's the right of the accused in criminal
cases to be cross-examined by the prosecutor to prove their innocence.
• Post-Trial Rights of the Accused Person
An accused person also has certain rights once his trial is over. These rights of the
accused depend upon the outcome of his trial. This means, whether (s)he has been
acquitted by the court or has been held guilty and arrested by police.

• Rights of the Accused, if declared innocent

When a person is declared innocent and acquitted by the court, the following rights
are given to him:

1. Accused persons have a right to get a copy of the judgment

2. Right to receive protection from police if there are reasons to believe there is
a threat to his life post-acquittal

S. 2 Punishment of offences committed within India

Every person shall be liable to punishment under this Code and not
otherwise for every act or omission contrary to the provisions thereof,
of which he shall be guilty within India.

S. 3 Punishment of offences committed beyond, but which by

23
 law may be tried within, India
Any person liable, by any Indian law, to be tried for an offence
committed beyond India shall be dealt with according to the provisions
of this Code for any act committed beyond India in the same manner as
if such act had been committed within India.

S. 4 Extension of Code to extra-territorial offences

Description
The provisions of this Code apply also to any offence committed by:
1. any citizen of India in any place without and beyond India;
2. any person on any ship or aircraft registered in India wherever it may
be.

Section 11:- “Person”

The word “person” includes any Company or Association or body of persons,
whether incorporated or not.

Section 14:- “Servant of Government”

The words “Servant of Government” denote any officer or servant continued,
appointed or employed in India by or under the authority of Government.
Section 21The words “public servant”denote a person falling under any of the
descriptions hereinafter following, namely:
1. ***
2. Every Commissioned Officer in the Military, Naval or Air Forces of India;
3. 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;
4. Every officer of a Court of Justice (including a liquidator, receiver or commissioner)
whose duty it is, as such officer, to investigate or report on any matter of law or fact,
or to make, authenticate, or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath, or to interpret,
or to preserve order in the Court, and every person specially authorized by a Court of
Justice to perform any of such duties;
5. Every juryman, assessor, or member of a panchayat assisting a Court of Justice or
public servant; ( Jury system abolished in 1959)
6. Every arbitrator or other person to whom any cause or matter has been referred for
decision or report by any Court of Justice, or by any other competent public
authority;
7. Every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;
8. 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;
9. 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

24
 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;
10. 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;
11. Every person who holds any office in virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part of an
election;
12. Every personin the service or pay of the Government or remunerated by fees or
commission for the performance of any public duty by the Government;in the service
or pay of a local authority, a corporation established by or under a Central, Provincial
or State Act or a Government company as defined in section 617 of the Companies
Act, 1956 (1 of 1956).Section 2(45) Government Company Companies Act 2013

S. 22 "Movable property"
Description
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.
IPC Chapter II

S. 23 "Wrongful gain"
Description
“Wrongful gain”: Wrongful gain is gain by unlawful means of property to
which the person gaining is not legally entitled.
“Wrongful loss”: Wrongful loss is the loss by unlawful means of
property to which the person losing it is legally entitled.
“Gaining wrongfully”: A person is said to gain wrongfully when such
person retains wrongfully, as well as when such person acquires
wrongfully.
“Losing 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.
IPC Chapter II

S. 24 "Dishonestly"

25
 Description
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”.
25. “Fraudulently”.—A person is said to do a thing fraudulently if he
does that thing with intent to defraud but not otherwise.

25. "Fraudulently".- A person is said to do a thing fraudulently if he does that thing

with intent to defraud but not otherwise.

The Penal Code defines the word 'fraudulently'. It says that there can be no fraud
unless there was an intention to defraud. Fraud can be done in 3 ways-

1. By depriving a man of his rights, either by obtaining something by deception or by

taking something wrongfully without the knowledge or consent of the owner. 2. By
wrongfully withholding something from another what is due to him or by wrongfully
preventing someone from detaining what he may justly claim. 3. By wrongfully
defeating or frustrating another's right to property.

Essential elements to constitute fraud- Firstly, deceit or an intention to deceive or, in

some cases, mere secrecy;

Secondly, by either actual injury or possible injury or an intent to expose some

person either to actual injury or to risk of possible injury, by means of that deceit or
secrecy.

Injury is something other than economic loss, that is, deprivation of property, whether
movable or immovable, or of money, and it will include any harm whatever caused to
any person in body, mind, reputation or such others.In short it is a non-economic or
non pecuniary loss.

The intention to deceive is the most important element to prove fraud in criminal
cases. The intention entertained by the fraudulent person, whose principal object in
every case, is his own advantage and injury to the person deceived.

In Queen-Empress vs Muhammad Saeed Khan,¹ ILR 21 All 113 (115).Banerji, J.

gave a practical conclusive test to gauge fraudulent character of a deception for
criminal purposes i.e. Did the author of the deceit derive any advantage from it which
could not have been had, if the truth had been known? If so, it is hardly possible that

26
the advantage should not have had an equivalent in loss, or risk of someone else;
and if so, there was fraud.

In another case of Dr.Vimla v. Delhi Administration ²AIR 1963 SC 1572: 1963 Supp
(1) CR 585: (1963) 2 Cr LJ 434., the supreme court observed that the expression
'defraud' involves two elements, namely, deceit and injury to the person deceived.
And even in the rare cases, where there is a benefit or advantage to the deceiver,
but no corresponding loss to the deceived, the second condition is satisfied.

In this case, Dr.Vimla was guilty of deceit, for though her name was Vimla, she
signed in all the relevant papers as Nalini, and made the insurance company believe
that her name was Nalini, but the said deceit did not cause any advantage or any
non economic loss, or injury to the insurance company. As a result of which she was
held guilty for committing fraud. Held, she was not guilty of forgery under section 467
and 468, IPC because there was no injury to the insurance company nor advantage
to the accused.

One more case which clearly pronounces the meaning of 'intent to defraud' and the
subsequent result or impact on the person deceived is Dr. S. Dutt v. State of Uttar
Pradesh³1966 Cr LJ 459 (SC).. In this case the Supreme court said that a person is
said to do a thing Fraudulently, if he does that thing with the intent to defraud but not
otherwise. The last three words in the provision 'but not otherwise' clearly indicate
that the intent must be an 'intent to defraud'. Intention is not a bare intent to deceive,
but to cause a person to act or omit to act, as a result of the deception played upon
him, to his disadvantage.

The word fraudulently has been used in various sections of the code, viz., offences
against public justice (section 206 to 210, IPC), of offences relating to coin and
government stamps(section 246 and 247,IPC), of offences relating to weights and
measures(section 264 and 265, IPC) and offences relating to documents and
property marking including electronic records (section 463 to 464 ,IPC), etc.

The word 'Fraudulently' along with 'dishonestly' has been used in section 421- 424,
IPC under offences against property.

421. Dishonest or fraudulent removal or concealment of property to prevent

distribution among creditors.- This section is intended to punish fraudulent debtors

27
who dishonestly dispose of property with intent to cause of loss to their creditors. It
may apply to movable as well as immovable property. Main ingredients to this
offence are- 1. The accused removed, concealed or delivered or transferred or
caused to be transferred to any person any property; 2. Transfer was made without
adequate consideration; 3. Accused intended to prevent the distribution of the
property among his creditors or creditors of any other person; 4. The accused acted
dishonestly or fraudulently. This offence is non-cognizable, bailable and punishment
is imprisonment upto 2 years of either description or fine or both.

422. Dishonestly or fraudulently preventing debt being available for creditors.- This
section punishes the act of dishonesty or fraudulently preventing debt from being
available to the creditors. The offence consists of the dishonest or fraudulent evasion
of one's own liability. Important ingredients for this offence are- 1. The dept or
demand was due to the accused or any other person; 2. The accused prevented the
dept or demand from being made legally available for creditors; 3. The accused did
so dishonestly or fraudulently. This offence is non-cognizable, bailable and
punishment is imprisonment for 2 years or fine or both.

423. Dishonest or fraudulent execution of deed of transfer containing false statement

of consideration.- this section deals with two specific fraud in the execution of deeds
or instruments of transfer, namely, 1. false recital as to consideration, 2. false recital
as to the name of the beneficiary. One of the necessary elements of the offence
under this section is the presence of dishonesty or fraudulence on the part of the
accused. A dishonest execution of benami deed falls under the section. This offence
is both cognizable and bailable and the punishment goes up to the imprisonment of
upto 2 years or fine or both.

424. Dishonest or fraudulent removal or concealment of property.- This section

punishes the dishonest or fraudulent removal or concealment of property and is
aimed against such debtors as those who try to defraud creditors. Main ingredients
to this offence are- 1. The accused concealed or removed any property of himself or
any other person or assisted in the concealment or removal of the same; 2. The
accused did so dishonestly or fraudulently; 3. The accused fraudulent released any

28
demand or claim to which he is entitled. The element of dishonesty is included in the
offence if there is the wrongful loss to the person deceived and wrongful gain to the
deceiver. This section also punishes the fraudulent concealment of his own property
within the intention to defraud or defeat his creditors or partners or other.

Dishonestly and fraudulently We have already seen the use of terms 'dishonest' and
'fraudulent' subsequently in the above mentioned provisions of the Penal Code. And
although 'dishonestly' and 'fraudulently' appear to be synonymous to each other in
standard language, in terms of law the meaning of the two differ. Fraudulently is
mentioned in section 25 of IPC whereas the term dishonestly is mentioned in section
24 of IPC.

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".

According to the definition given to the word 'fraudulently' in section 25, deceit is an
essential ingredient of the term fraudulently whereas it is not required in the case of
'dishonestly' given in section 24, IPC.

In case of dishonesty there should be a wrongful gain to one party and wrongful loss
to the other. For example, A promises B to deliver B's goods to C. Now instead of
delivering the goods to C, A takes them to his own home with the intention of
keeping them to himself. Here A dishonestly took the goods and thus derived a
wrongful gain and caused wrongful loss to B.

But in the case of 'fraudulently' the act must be accompanied by deceitful means. For
instance, if A produces false certificates that represent himself as a graduate from a
particular University and thus seeks a job in a company, he is said to have acted
fraudulently since he has deceived the authorities.

In case of dishonesty there must be a pecuniary or economic gain or loss while in

fraudulently this is not always so. The elements which constitute an act fraudulent
are deceit and an intention to deceive in some cases even mere secrecy. Thus,
when there is neither an intention to deceive nor secrecy the act though dishonest is
not fraudulent as explained in the case of Dr.Vimlavs Delhi administration.

29
 Section 30:- “Valuable security”
The words “valuable security” denote( Indicates) a document which is, or purports to
be (Falsely to be), a document whereby any legal right is created, extended,
transferred, restricted, extinguished or released, or who hereby any person
acknowledges that he lies under legal liability, or has not a certain legal right.
Illustrations
1. A writes his name on the back of a bill of exchange. As the effect of this
endorsement(Approval) 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”.
2. Essentials/Ingredients of Valuable Security some ingredients of valuable
security are as follows:
3. 1. Valuable Security is a document;
4. 2. it is a document whereby any legal right is created, extended, transferred,
restricted, extinguished or released;
5. 3. it is a document whereby any person acknowledges that he lies under legal
liability or has not a certain legal right.

6. Thus, a "Valuable Security" is a document of some value. That is to say, a

document which of itself creates or extinguishes legal rights, or at least purports
to create or extinguish them.
7. From legal right we mean any right which is provided, accepted, and protected by
law. Such rights are recognized and enforceable by law. It exists under the rule
of a particular legal system. It means that any violation of legal right is punishable
by law.

8. Which type of Documents can be considered as valuable security?

9. It may be noted that all valuable security are documents but all documents
are not valuable security. In other words, document is a genus of which "valuable
security" is a species. Now, the question arises which type of documents could
be considered as valuable security? . This question has been answered through
various judgments delivered by the courts from time to time whenever matters
relating to valuable security came before the courts. Here are the few case laws
where the courts had specified the validity of valuable security.

10.
Ajhimuddin V. Emperor , (1869) 11WR Cr. 15 In the present case the
honorable Court held that a deed of divorce is a valuable security , under section
30 of the Indian Penal Code, because it extinguishes a legal right of the parties.
11. Kabuliyat is also a valuable security within the meaning of section 30 of the
Indian Penal Code as it also terminates a legal right of the parties.
12. Krishn Rao V. State of Madhya Pradesh, (1953) Cr. L. J. 979

13. In this case it was held by the honorable Court that a rent note is a valuable
security, under section 30 of the Indian Penal Code, 1860.

30
14. Ramnarayan V. Nageshwar 4 D.L.R. 49 Discharge certificate was considered
as a valuable security under section 30 of the Indian Penal Code, 1860, by the
honorable Court in the present case.
15. Chacko, (1970) Kerala Law Times 358

16. The honorable Court held that a lottery ticket is a valuable security under
section 30 of the Indian Penal Code, 1860, in the present case.

17. Ramnarayan Sahu V. State, AIR 1933 Patna 601 In the present case the
honorable Court held that hundi/hundee, account books, and a promissory note
which was forcefully executed by a minor could be considered as valuable
security under section 30 of the Indian Penal Code, 1860.
18. Ishwar Lal Girdhari Lal Parekh V. State of Maharashtra, AIR 1969 SC 40

19. In the present case the honorable Court held that an income tax assessment
order is a valuable security under section 30 of the Indian Penal Code, 1860.

20. Daniel Hailey Walcott v. State, AIR 1968 Mad. 349

21. In the present matter the honorable Court held that passport is a valuable
security within the meaning of section 30 of the Indian Penal Code, 1860.The
Indian Passport Act recognises the right of a foreigner holding a valid passport to
enter into this country; such a passport is a document creating a legal right thus,
it is a valuable security.

22. Kizhakkeppallikl Moosa And Ors. vs State, AIR 1963 Ker. 68 In this present
matter the honorable Court held that account books are valuable security within
the definition of section 30 of the Indian Penal Code of 1860.
23. A document suspending a person from exercising his ex officio powers is a
restriction of legal right. Thus, a document terminating such suspension is a
valuable security.
24. Which type of documents could not be considered as valuable security?

25. As we have discussed previously that only those documents are valuable
security within the meaning of section 30 of the Indian Penal Code of 1860 which
create, confer, extend, transfer, restrict, extinguish or release any legal right. But
the documents which have no legal rights do not constitute valuable security. If,
therefore the document is executed by a minor, or is unstamped, or contains
blanks, or does not specify the name of the executor, or the date, or place of
execution, or contains any form of invalidity, it is, nevertheless a valuable
security, because it purports to be a document. Few case laws regarding the
invalidity of a valuable security are below:

26. Sadholal v. Emperor, AIR 1917, Patna 699

27. Here the honorable Court held that an acknowledgement of receipt of an insured
parcel is not a valuable security within the meaning of section 30 of the Indian
Penal Code, 1860.

28. Naro Gopal, (1868) 5 BHC (Cr. C) 56

31
29. In the present case the honorable Court held that a copy of a lease security,
does not come under the definition of valuable security under section 30 of the
Indian Penal Code, 1860.

30. Hari Prasad v. State, 1953 Cr.L.J. 1964

31. In this case the account books containing entries was not considered as a
valuable security as the honorable Court held that account books which were not
signed by a party is infected with a kind of invalidity. Thus it is not a valuable
security within the meaning of section 30 of the Indian Penal Code, 1860.

32. Jan Mahomed, (1884) 10 Cal. 584 A sanad (document) conferring a certain
dignity upon the grantee, is not a valuable security within the meaning of section
30 of the Indian Penal Code, 1860.
33. Ramharak Pathak v. Emperor, (1925) 48 All. 145

34. In this case the honorable Court held that the use of the words ‘which is or
purports to be’, under section 30 of IPC, indicates that a document which upon
certain evidence being given, may be held to be invalid, but on the face of it
creates or purports to create, right in immovable property, although a decree
could not be passed upon the document, Comes within the purview of the section
30 of the Indian Penal Code.
35.

36. Shriniwas Pandit Dharmadhikari v. State of Maharashtra, 1980 Cr. L. J. 1345

37. It was held by the court that a certificate used for admission in a college cannot
be treated as a valuable security, within section 30 of IPC.
38. However, a ticket for admission to an entertainment is a valuable security as it
provides the buyer a right to enter into the theatre and witness the performance
and to its seller the right to collect a price for it inclusive of entertainment tax.

39. Hari Prasad v. State, 1955 All. Law Journal 318

40. It was held that a a copy of valuable security could not be treated as a valuable
security.

41. Charuchandra v. Samrat, AIR 1924 Calcutta 502

42. In this case the court held that a copy of decree is not a valuable security within
the meaning of section 30 of the Indian Penal Code.
43.

44. Valuable security with reference to different sections of IPC

45. The term "Valuable Security", is used in various sections of the Indian Penal
Code.As valuable security is a document conferring some legal rights, forgery of
such documents is punishable by law. Some sections of IPC also deal with the
forgery, fraudulent cancellation or destruction of valuable security and provides
punishment for the same.Forgery means fraudulently creating any legal data or

32
 document which confer some legal right, with a malafide intention to deceive the
person other than himself or herself.
46.

47. Section 467of the IPC deals with the forgery of valuable security, will etc and its
penalty. It is defined as "whoever forges a document which purports to be a
valuable security or a will, or an authority to adopt a son, or which purports to
give authority to any person to make or transfer any valuable security, or to
receive the principal, interest or dividends thereon, or to receive or deliver any
money, movable property, or valuable security, or any document purporting to be
an acquittance or receipt acknowledging the payment of money, or an
acquittance or receipt for the delivery of any movable property or valuable
security, 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".

48. The section provide punishment for forgery of valuable security. It also specify
the set of documents comes under the said section. An unregistered document,
though not a valuable security Untill the registration is done, still it purports to be
a valuable security within the meaning of this section.
49.
50. The offences related to the forgery of valuable security, will etc., are considered
to be the most serious type of forgery. To invoke section 467, in context of
valuable security the forged documents must purport to be a valuable security.
51.
52. Section 477 of IPC deals with the fraudulent cancellation, or destruction, etc., of
will, authority to adopt, or valuable security.It is defined as, whoever fraudulently
or dishonestly, or with intent to cause damage or injury to the public or to any
person, cancels, destroys or defaces, or attempts to cancel, destroy or deface, or
secretes or attempts to secrete any document which is or purports to be a will, or
an authority to adopt a son, or any valuable security, or commits mischief in
respect of such documents, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.

53. According to section 327 of IPC, whoever voluntarily causes hurt, for the purpose
of extorting from the sufferer, or from any person interested in the sufferer, any
property or valuable security, or of constraining the sufferer or any person
interested in such sufferer to do anything which is illegal or which may facilitate
the commission of an offence, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to
fine.
54. Section 329 of IPC states that, whoever voluntarily causes grievous hurt for the
purpose of extorting from the sufferer or from any person interested in the
sufferer any property or valuable security, or of constraining the sufferer or any
person interested in such sufferer to do anything that is illegal or which may
facilitate the commission of an offence, shall be punished with imprisonment for
life, or imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
55. According to section 347 of IPC, whoever wrongfully confines any person for the
purpose of extorting from the person confined, or from any person interested in
33
 the person confined, any property or valuable security or of constraining the
person confined or any person interested in such person to do anything illegal or
to give any information which may facilitate the commission of an offence, shall
be punished with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.
56. Section 420 of IPC stipulates, whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to any person, or to make, alter or
destroy the whole or any part of a valuable security, or anything which is signed
or sealed, and which is capable of being converted into a valuable security, shall
be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.

Section 52:- “Good faith”

Nothing is said to be done or believed in “good faith” which is done or believed
without due care and attention

Essentials of Good Faith under IPC

1. Good Intention; and

2. Due care and attention.

1. In the case of Sukaroo Kobiraj v. The Empress [(1887) ILR 14 Cal 566
], the appellant was convicted under 304A for performing a very serious operation
i.e., cutting out of internal piles of a prisoner and as a result of excessive bleeding
the prisoner died. The court held that the prisoner is not entitled to get the benefit of
Section 88 as although he had no intention of causing death to the prisoner but if
from the bare perusal of good faith as defined under Section 52, an act is not said to
be done in good faith if it is not done with due care and attention. In the present case
too, the accused was uneducated of conducting surgery and he didn’t get the
immunity of good faith and was held liable under 304A.

1. 77, It stated that an act done because of a mistake of fact in good faith
because he considers himself to be bound by law to do that act is not an
offence. In the case of State of West Bengal v. Shew Mangal Singh and
Ors. [AIR 1981 SC 1917], the respondents were convicted under section
302 of IPC but the Supreme court held that their act was justified and lawful
as they did the present act on the orders of their superior officer and held
that as per the circumstances of the case, the order of open fire could be
acceptable.
78, This section protects the person who executes an order/judgement of the court.
The section states that when an order or judgement is in force, anything
performance done for the same is not an offence. Even when it is beyond jurisdiction
and the person believes in good faith to be in jurisdiction then also he is not liable for
any offence.

34
 1. 79. This section protects the person who does an act, due to reason of
mistake of fact, in good faith and thinks that they are justified by law to do
so Chirangi v. State [(1952) Cri LJ 1212]

1. 88, A person who does an act not intended to cause death and done for the
benefit of a person with his consent (either express or implied) cannot be
held liable for the act if it leads to any other harm or death. G.B Ghatge v.
Emperor [AIR 1949 Bom 226]
89. An act done by a person in good faith for the benefit of the child or an person of
unsound mind on the consent(either express or implied) of his guardian or person
having legal right is not an offence.

92, A person cannot be held liable for an offence if he does act for the benefit of the
other with good faith but when it is not possible to obtain the consent of him or his
guardians.

93, Communication Done in good faith

If any communication is given to a person for his benefit in good faith, the person
giving the communication is not liable for any harm caused.

,300(3) A person (either public servant or one authorized by a public servant) is not
liable for exceeding power to cause death if he did so with good faith and lawful
intention without ill-treatment to the person whom death is caused.

339The exception of this section states that if any person who in good faith thinks
that he has the right to obstruct the private way over land or water then he is not
liable under this section

499Exception 3 to this section provides that a person cannot be held liable for
expressing their views with good faith and honesty on conduct of a person
discharging public function.

Criminal liability is considered as the strongest formal condemnation inflicted by the

society which may result in deprivation of the ordinary liberties of the offender by
sentencing him for the act committed by him. Criminal liability can be assessed
under range of offences, the scope of criminal liability, conditions of criminal liability.

The principles of criminal liability are based on the maxim “Actus Non Facit Reum
Nisi Mens Sit Rea”, which means an act committed is not considered as criminal act
unless there is a guilty mind. Therefore, the fundamental elements which give rise to
criminal liability are-

(1) Mens rea (the guilty mind) and

35
(2) Actus reus (the criminal act)

The concept of considering the mens rea or the mental element is the crux of
establishing criminal liability except in specific cases of offences against state,
counterfeiting of coins, kidnapping and abduction. In Kartar Singh v. State of
Punjab1994 (3) SCC 569], the Supreme Court held that the element of mens rea
must be read into the penal provisions of a statute unless the statute expressly bars
it. Therefore, it is essential to consider the principle of guilty mind in the commission
of a criminal act.

The criminal liability so established can have the following variations-

• Individual Liability
• Joint Liability.

Individual Criminal Liability-

The concept of individual criminal liability is very simple as where a person has
committed a crime, the offender himself alone is punished for the offence. This is the
basic rule of all legal systems. All the offences under the Indian Penal Code
recognizes individual criminal liability where it prescribes punishment to the offender
for the crime committed.

The person who has committed any act which is opposed to the law time being in
force is held liable for such act in his individual capacity under criminal law unless
specifically exempted. There are certain exceptions to the individual criminal liability
under IPC. Chapter IV of the Indian Penal Code provides for general exceptions
where the individual is exempted from criminal liability.

Joint Criminal Liability-

Joint liability under the criminal law is established where the offence has been
committed by two or more people. Where the offence has been committed by two or
more persons, every one of them will be invariably holding the individual liability. But
along with this individual liability they are also held jointly liable as all of them have
committed the offence together. The Indian Penal Code has provided for the concept
of joint liability under Section 34 and further it is incorporated under other provisions
of the Code.

Section 34 of IPC provides that where a criminal act is done by several persons in
furtherance of common intention of all, then everyone in the group shall be held
liable for such criminal act. This provides for individual liability of every member of
the group committing such criminal act and also prescribes that the whole group is
liable by establishing the joint liability. To prove the offence under section 34, prior
meeting of mind is required[Ramashish Yadav v. State of Bihar, 1999 (8) SCC
555].Thus, common intention must exist prior to the commission of the criminal
act[Shyamal Ghosh v. State of West Bengal, AIR 2012 SC 3539].

Section 34:- Acts done by several persons in furtherance of common intention

-

36
When a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner
as if it were done by him alone.

Barendra Kumar Ghosevs King-Emperor AIR 1924 Cal 545

Nand Kishore v. State of Madhya Pradesh [(2011) 12 SCC

120],ShyamalGhoshvs State Of West Bengal(2012) 7 SCC 646

A bare reading of this section shows that the section could be dissected as follows :

(a) Criminal act is done by several persons;

(b) Such act is done in furtherance of the common intention of all; and

(c) Each of such persons is liable for that Act in the same manner as if it were done
by him alone.

In other words, these three ingredients would guide the court is determining whether
an accused is liable to be convicted with the aid of Section 34. While first two are the
acts which are attributable and have to be proved as actions of the accused, the third
is the consequence. Once criminal act and common intentions are proved, then by
fiction of law, criminal liability of having done that act by each person individually
would arise. The criminal act, according to Section 34 IPC must be done by several
persons. The emphasis in this part of the section is on the word `done'. It only flows
from this that before a person can be convicted by following the provisions of Section
34, that person must have done something along with other persons. Some
individual participation in the commission of the criminal act would be the
requirement. Every individual member of the entire group charged with the aid
of Section 34 must, therefore, be a participant in the joint act which is the result of
their combined activity. Under Section 34, every individual offender is associated
with the criminal act which constitutes the offence both physically as well as
mentally, i.e., he is a participant not only in what has been described as a common
act but also what is termed as the common intention and, therefore, in both these
respects his individual role is put into serious jeopardy although this individual role
might be a part of a common scheme in which others have also joined him and
played a role that is similar or different. But referring to the common intention, it
needs to be clarified that the courts must keep in mind the fine distinction between
`common intention' on the one hand and `mensrea' as understood in criminal

37
jurisprudence on the other. Common intention is not alike or identical to mensrea.
The latter may be co-incidental with or collateral to the former but they are distinct
and different.

12. Section 34 also deals with constructive criminal liability.It provides that where a
criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it was done by
him alone. If the common intention leads to the commission of the criminal offence
charged, each one of the persons sharing the common intention is constructively
liable for the criminal act done by one of them. {Refer to Brathi alias Sukhdev Singh
v. State of Punjab [(1991) 1 SCC 519]}.

Dharnidhar v. State of Uttar Pradesh and Others [(2010) 7 SCC 759],

Section 34 IPC applies where two or more accused are present and two factors
must be established i.e. common intention and participation of the accused in the
crime. Section 34 IPC moreover, involves vicarious liability and therefore, if the
intention is proved but no overt act was committed, the Section can still be invoked.
This provision carves out an exception from general law that a person is responsible
for his own act, as it provides that a person can also be held vicariously responsible
for the act of others, if he had the common intention to commit the act. The phrase
‘common intention’ means a pre- oriented plan and acting in pursuance to the plan,
thus, common intention must exist prior to the commission of the act in a point of
time. The common intention to give effect to a particular act may even develop at the
spur of moment between a number of persons with reference to the facts of a given
case.

Section 34 or Section 149 IPC, have been examined by Courts in several cases. In
Willie (William) Stanley Vs. State of M.P., AIR 1956 SC 116, it was held as follows:

“Section 34, 114 and 149 of the Indian Penal Code provide for criminal liability
viewed from different angles as regarding actual participants, accessories and men
actuated by a common object or a common intention and ‘the charge is rolled-up one
involving the direct liability and the constructive liability’ without specifying who are
directly liable and who are sought to be made constructively liable. In such a
situation, the absence of a charge under one or other of the various heads of
criminal liability for the offence cannot be said to be fatal by itself, and before a
conviction for a substantive offence without a charge can be set aside, prejudice will
have to be made out.”

38
Moreover, a distinction between ‘’common intention’ and ‘common object’ was made
out by this Court in the case of Chhitarmal Vs. State of Rajasthan, (2003) 2 SCC 266
as under:

“A clear distinction is made out between common intention and common object in
that common intention denotes action in concert and necessarily postulates the
existence of a pre-arranged plan implying a prior meeting of the minds, while
common object does not necessarily require proof of prior meeting of minds or pre-
concert. Though there is substantial difference between the two sections, they also
to some extent overlap and it is a question to be determined on the facts of each
case whether the charge under section 149 overlaps the ground covered by section
34.
Difference between common intention and common object

Under the IPC, both Section 34 and Section 149 impose vicarious liability on each

individual for acts which are not necessarily done by them. There is, however, a

distinction in the scope and nature of operation of both offenses.

• The charge under Section 149 is replaced by Section 34 of the IPC,

particularly if some of the accused are acquitted and the number of the

accused drops below 5. In this case, the tribunal would have to scrutinize

the proof closely to see if there is some aspect of common intention for

which it can be held responsible under Section 34.

• Section 34 does not constitute a particular offense but sets out only the

principle of joint criminal culpability. Whereas Section 149 generates a

particular offense and being a member of an unlawful assembly is itself a

criminal offense punishable under Section 143.

• ‘Common intent’ used in S.34 has not been defined anywhere in the IPC,

whereas’ common object’ must be one of the five ingredients defined in

Section 141 of the IPC.

39
 • Common intention needs a preliminary meeting of mind and unity of

purpose, and open action has been taken to promote the common

intention of all. If the common object of the members of the unlawful

assembly is one but the participants’ intention is different, a common

object can be formed without a prior meeting of mind. It only needs

a criminal act to promote a common purpose.

• For invoking S.34 it is adequate that two or more individuals were

involved. However, to impose section149 there must be at least 5 people.

• ‘Participation’ is a key factor for S.34, whereas active involvement in

S.149 of the IPC is not required.

• Section 34 requires common intention of any kind. One of the items listed

in Section 141 must be a common object under Section 149.

• Section 34 requires some active involvement, particularly in the case of a

crime involving physical abuse. Section 149 does not involve active

involvement and the responsibility comes from the mere membership of

the unlawful assembly with a common objective.

S. 107Abetment of a thing

Description

A person abets the doing of a thing, who:

1. Instigates any person to do that thing; or

2. 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

3. Intentionally aids, by any act or illegal omission, the doing of that thing.

40
 Chapter VA – Criminal Conspiracy
Section 120A:- Definition of criminal conspiracy
When two or more persons agree to do, or cause to be done:
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount
to a criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanations
1. It is immaterial whether the illegal act is the ultimate object of such agreement, or is
merely incidental to that object.

Section 141:- Unlawful assembly

An assembly of five or more persons is designated an “unlawful assembly”, if the
common object of the persons composing that assembly is:
1. To overawe by criminal force, or show of criminal force, 1the Central or any State
Government or Parliament or the Legislature of any State, or any public servant in
the exercise of the lawful power of such public servant; or
2. To resist the execution of any law, or of any legal process; or
3. To commit any mischief or criminal trespass, or other offence; or
4. By means of criminal force, or show of criminal force, to any person to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of
way, or of the use of water or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right; or
5. By means of criminal force, or show of criminal force, to compel any person to do
what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanations
1. An assembly which was not unlawful when it assembled, may subsequently become
an unlawful assembly.

Section 149:- Every member of unlawful assembly guilty of offence committed

in prosecution of common object
If an offence is committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object, every person who, at the
time of the committing of that offence, is a member of the same assembly, is guilty of
that offence.

41
Section 376D:- Gang rape1
Where a woman is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with rigorous imprisonment for
a term which shall not be less than twenty years, but which may extend to life which
shall mean imprisonment for the remainder of that person’s natural life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses
and rehabilitation of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.
1 Criminal Law (Amendment) Act, 2013

Section 376DA:- Punishment for gang rape on woman under sixteen years of
age2
Section 376DB:- Punishment for gang rape on woman under twelve years of
age

Section 396:- Dacoity with murder

If any one of five or more persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons shall be punished with
death, or imprisonment for life, or rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.

JOINT AND CONSTRUCTIVE LIABILITY

SECTION Essential Elemental Differences

34 1. It is a Rule of Evidence
2. A criminal Act is done by more than one Person
3. In furtherance of Common Intention
4. Actual Participation on the scene of the crime
5. Each of the accused shall be punished in the same
manner as if it has been done by himself alone
6. It does not prescribe any specific punishment but
enhance extent of Punishment through constructive
liability.
107 1. Explanatorily defines Abetment in three modes
(a) By Instigation (b) By Conspiracy (c) by Adding
2. (i) Any willful misrepresentation, or by willful
concealment of a material fact which the accused
is under legal obligation to disclose Or
3. (ii)voluntarily causes or procures, or attempts to
cause or procure, a thing to be done,
Shall be construed as Abetment by Instigation
4. In India Abetment before the Fact and at the Fact
is recognized but not after the Fact
5. Abeter and person Abeted may share same
intention but might act differently

42
120 A 1. It is an Intransitive act to convert it to a transitive
act
2. It is an Inchoate Crime.
3. Minimum two or more Accused necessary
4. There must be an agreement to do, or cause to be
done:
5. (a) an illegal act, or
(b) an act which is not illegal by illegal means,
such an agreement is designated a criminal
conspiracy;
(c) 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.
(d) It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely
incidental to that object.
149 1. Accused must be a member of an unlawful
assembly (Minimum 5 or more)
2. In prosecution of the common object of that
assembly, or knew to be likely to be committed in
prosecution of that object,
3. Common Object (Any 5 objects explained under
Section 141)
4. every person who, at the time of the committing of
that offence, is a member of the same assembly, is
guilty of that offence
5. At formative stage, an assembly may be lawful but
latter it can be treated as Unlawful.
376D/376DA/376DAB/ 1. Rape has been committed by one or more persons
constituting a group
2. acting in furtherance of a common intention
3. Each of those persons shall be deemed to have
committed the offence of rape
396 1. Any one of five or more persons
2. who are conjointly committingdacoity, commits
murder in so committing dacoity,
3. Every one of those persons shall be punished in
the same manner
4. Section 34 has no application under section 396

Jurisdictions of IPC

Mobarik Ali Ahmed vs The State Of Bombay on 6 September, 1957

Equivalent citations: 1957 AIR 857, 1958 SCR 328
Supreme Court of India
State Of Maharashtra vs Mayer Hans George on 24 August, 1964

43
Equivalent citations: 1965 AIR 722, 1965 SCR (1) 123
MT EnricaLexie v. Doramma, (2012) 6 SCC 760

Superintendent & Legal ... vs Corporation Of Calcutta on 7 December, 1966

Equivalent citations: 1967 AIR 997, 1967 SCR (2) 170( State can Be held
responsible)
Bombay High Court
State Of Maharashtra vs Syndicate Transport Co. (P) Ltd. ... on 26 September,
1963
Equivalent citations: AIR 1964 Bom 195, (1964) 66 BOMLR 197, 1964 CriLJ 276(
Director of company can Be held responsible

The Indian Parliament has kept itself abreast with the latest development in the field
of international law and has enacted the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and other Maritime Zones Act, 1976 Section 3 (2) of which
has extended the territorial waters of India to twelve nautical miles.
In 1977 the Exclusive Economic Zone has also been extended to two hundred
nautical miles. If any offence relating to the property is committed within this zone,
the Indian criminal jurisdiction will naturally extend to it.

The President of India and the Governors of the States are exempted from the
jurisdiction of the Criminal Courts, by Article 361 of the Indian Constitution.

Certain immunities and privileges have been granted to Ambassadors of other

countries by the Diplomatic Privileges Act, 1964 of England, the United Nations
(Privileges and Immunities) Act, 1947 (Act No. XLV of 1947) of India, etc., are
examples. Therefore, Ambassadors are exempted from the jurisdiction of the Indian
Criminal Courts.

Extradition Act, 1962.

Admiralty Jurisdiction: The jurisdiction to try offences committed on the high seas
is known as admiralty jurisdiction. It is founded on the principle that a ship on the
high seas is a floating island belonging to the nation whose flag she is flying.
Admiralty jurisdiction extends over-
• Offences committed on Indian ships on the high seas
• Offences committed on foreign ships in Indian territorial waters
In MT EnricaLexie v. Doramma, (2012) 6 SCC 760

Case, a fishing boat registered in India, while fishing off the coast of Kerala was fired
at from a passing Italian ship named Enrica Lexie. As a result of this, 2 out of the 11

44
fishermen were instantaneously killed. The ship was arrested and an FIR was
registered by the Kerala Police. Later the two Italian marines were also arrested.
They filed a writ petition before Kerala High Court for quashing the FIR since the
incident occurred at a place which was 20.5 nautical miles from the coast of India.
The writ was quashed as it was held that section 2 of the IPC gave Kerala Police
jurisdiction over this incident. Subsequently, Supreme Court held that the Union of
India was entitled to prosecute the accused but the same was subject to the
provisions of Article 100 of United Nations Convention on the Law of the
Sea(UNCLOS) 1982 which provides that such cases can only be conducted at the
level of the Federal/Central Government and are outside the jurisdiction of the State
Governments. Hence the State of Kerala has no jurisdiction to investigate into the
incident and it is the Union of India which has jurisdiction to proceed with the
investigation. Hence, the Supreme Court directed the Central Government to set up
a Special Court to try this case.

Provisions Related to Extra Territorial Jurisdiction of in Criminal Procedure

Code

Section 179: Offence triable where act is done or consequence ensues:

When an act is an offence by reason of anything which has been done and of a
consequence which has ensued, the offence may be inquired into or tried by a Court
within whose local jurisdiction such thing has been done or such consequence has
ensued.
Section 188: offences committed outside India:
When an offence is committed outside India-
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed at any
place within India at which he may be found. Receipt of evidence relating to offences
committed outside India.
When any offence alleged to have been committed in a territory outside India is
being inquired into or tried under the provisions of Section 188, the Central
Government may if it thinks fit, direct that copies of depositions made or exhibits
produced before a judicial officer in or for that territory or before a diplomatic or
consular representative of India in or for that territory shall be received as evidence
by the Court holdings such inquiry or trial in any case in which such Court might
issue a commission for taking evidence as to the matters to which such depositions
exhibits relate.
000000000000000000000000000000000000000000000000000000000000000

Punishment.

Scope of Section 53

In the Indian Penal Code, 1803 (“Code”), Section 53, specifically deals with different
types of punishments which can be given by the Criminal Courts if the person is held
liable under the Code.

There are five kinds of punishments recognized under Section 53 of the Code:

45
 1. Death;
2. Imprisonment for life;
3. Imprisonment:

1. Rigorous Imprisonment; or
2. Simple Imprisonment.

1. Forfeiture of property;
2. Fine.
Considering the above punishments, the courts are supposed to follow the
procedures and provisions which are prescribed under other adjective and
substantive laws.

As per the scheme of the Code the maximum punishment is prescribed, leaving the
minimum to the discretion of the Judge. The Judge has all the means to form an
opinion on the sentence which would meet the end of justice in a particular case. If
the offence is grave in nature then the Code had prescribed the maximum and the
minimum duration of the punishment.

A term which is inherent to criminal justice. It is only because of the term

punishment, that certain acts are classified as ‘crimes’. Down the lane of the history
of the society, we have seen that without punishments, it would have sometimes
been impossible to tame the barbaric, as well as primitive tendencies of the public. It
was the weapon named ‘punishment’, that the rulers used against their subjects in
order to maintain a fear in the minds of the public regarding the capacities and
powers of their rulers. Punishments sometimes were also given as an insult to
someone else. However, the most common punishment from which all of us are
familiar is the scolding or mild beating that we get from our parents. In that case,
what are the theories of punishment actually in case of serious crimes? How did they
develop? What are the pros and cons of the various ways of punishing people? Do
the Hindu scriptures too depict any form of the punishments mentioned hereinafter?

Principles for Sentencing

The principle for sentencing developed through court decisions and legislation. And
these principles form the sentencing decisions. The principles which are generally
followed by the court are as follows:

• Excessiveness/Parsimony– the punishment which is given shall not be

severe unless required.
• Proportionality– the sentencing shall fit to the overall gravity of the crime.

46
 • Parity– the punishment should be similar for similar types of offences
committed by offenders under similar situations.
• Totality– when an offender is punished with more than one sentence, the
overall sentence must be just and appropriate which shall proportional to
the offending behaviour.
• Purpose– the sentencing shall achieve the purpose of the punishment. The
purpose of punishment can be a deterrent, rehabilitative, protection of the
public, etc.
• Simplicity and predictability– sentencing shall not be depending on the bias
or personality of the judge. There shall be a clear and definite scheme of
sentencing.
• Truthfulness- the sentencing shall reflect the actual term to be served by the
prisoner in prison, so there shall be no place for ambiguity.

Aggravating Circumstances
The aggravating circumstances to which the Judges consider are as follows:

1. The surrounding of the crime itself;

2. The circumstances relating to the criminal’s background;
3. The circumstances relating to the criminal’s conduct;
4. The criminal’s future dangerousness;
The other factors which are considered under aggravating circumstances are as
follows:

• Professionalism and premeditation;

• Prevalence of offence;
• Offences committed in the group;
• Breach of trust.
In the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach
which was laid down in the case of Bachan Singh was subsequently not fully
adopted by the courts. The mitigating factors and aggravating factors both need to
be considered and balanced while sentencing a punishment to the accused.

The Theories of punishment

• RETRIBUTIVE THEORY.
• DETERRENT THEORY.
• PREVENTIVE THEORY.
• INCAPACITATION THEORY.

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 • COMPENSATORY THEORY.
• REFORMATIVE THEORY.
• UTILITIRIAN THEORY.

Let us have a look at each one of them in detail.

Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many
people in the society would perceive it as, is the most basic, yet inconsiderate theory
of inflicting a penal sentence over a perpetrator. It is based on a very small doctrine,
namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’.
Now, if looked at from the perspective of very serious and heinous offences, like the
Delhi gang rape case, people may feel that it is better to inflict such retributive
punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future.

However, we forget to understand sometimes that always having a retributive

approach will render the society one with a primitive system of justice, where the
Kings or the Judges were considered to be the supreme beings and were provided
with the stature of God Himself (hence the address My Lord) and thus, collapse the
very concepts of the representatives being ‘servants’. Before we move on to a
deeper understanding of the Retributive Theory, we need to understand two very
important doctrines. Let us have a look at them both.

Doctrine of Societal Personification and the Doctrine of Correctional

Vengeance:

• Doctrine of Societal Personification can be stated as-

‘When a member of the society is subjected to a very heinous crime, as a result of

which, the whole society, as if it were a natural person, considers the offence to be
inflicted upon itself, comes to the defence of that person either by way of demanding
justice or by conducting the same on its own, the society is said to be personified.’

48
A very self-explanatory doctrine. To be put simply, it means that the society,
whenever a heinous crime of an extreme form is committed, assumes the form of a
natural person and behaves in a collective manner so as to get justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape
case, etc.

• Doctrine of Correctional Vengeance maybe stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict
vengeful (as painful as the original act, or even more) punishments upon the victim
for creating a deterrent, it is said to exhibit correctional vengeance.’

The above definition, too, is quite self-explanatory in its nature. Now that we have
understood these two doctrines, we have a basic idea about what really is
retributivism or retributive justice. Let us now have a closer look upon the same.

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is best
understood as that form of justice committed to the following three principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically

serious crimes, morally deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other
goods that might arise—if some legitimate punisher gives them the
punishment they deserve; and
3. that it is morally impermissible intentionally to punish the innocent or to
inflict disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further. We
may understand retributive justice in this manner. The place where both Criminal
Law as well as Moral Law meet, is the place where mostly the retributive
punishments are generated.

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In fact, although people may classify punishments into seven different types, but in
reality, every punishment, indeed, is retributive in nature. It is very interesting to see
that the damages claimed under Torts, or the remedies sort for environmental
violations, maybe compensatory, but at their hearts, are retributive in nature. Then
why aren’t they labelled as retributive, instead? Well, the answer to the question is
simple. Retributive punishments are somewhat vengeful in their nature (an eye for
an eye). They may not be vengeful always, but maybe merely morally vengeful.
When we say this, it means that although the punishment is not literally the thing that
was originally done by the perpetrator, is still acts as a vengeance by virtue of its
seriousness.

E.g: If a person rapes someone, capital punishment maybe given as a retributive

measure. If we literally give the person back what he did, i.e., sex, then it would be
pleasurable rather than torturing for him. Now that we have understood briefly that
how exactly the retributive punishment works, let us now move on to understand the
ways in which Retributive Theory is displayed in the Hindu texts and scriptures.

Retributive Theory and the Hindu Scriptures:

The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga
Saptashati, are primarily based on Retributive Theories but also, depict the ways in
which one should proceed while applying them.

Ramayana- In the Ramayana the whole story began from retribution itself.
Lakshmana cut the nose of Raavan’s sister, because of which he kidnapped Sita. In
order to rescue her and also to avenge her kidnapping, Ram went to kill Raavan.
But, the major difference between the application of the retributive punishment
between the two was that Raavan did not even give Ram a chance to repent for his
younger brother’s act, but, Ram gave several chances to Raavan to correct his act.

Mahabharata– Mahabharata, once again, is a very good example of how retributive

punishment should be inflicted. The Pandavas had not started-off with the war right
away. They had sent Shri Krishna as their messenger of peace a number of times to
the Kauravas, but, they did not give in. Mahabharata, especially Shrimad Bhagvad
Geeta, talks about the time when the retributive mode should be used. As we all

50
know that Arjun was about to leave the battlefield as he was too scared to go against
his own relatives, it was Krishna who said that ‘when all other paths close down, only
then war is to be resorted to. Because if then the person refuses to fight, then it will
inflict gross injustice upon the society at-large.’

Durga Saptashati– In this too, Goddess Durga warns the various demons,
i.e. Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree
upon them.

Now, let us move on to see some important case laws regarding this theory of
punishment.

Case Laws:

1. Nirbhaya Judgement– Mukesh and Another v. State (NCT of Delhi) and

Others (2017) 6 SCC 1 This case is indeed the first and foremost case to
be mentioned, while talking about retributive justice in India. In this
Judgement, the Supreme Court sentenced four out of six felons involved in
the extremely heinous Delhi gang rape case to death, much to the delight
of the society, as they had committed an extremely gruesome, as well as
morally unimaginable crime.
2. Anwar Ahmad v/s. State of Uttar Pradesh and Anr. 1976 AIR 680 SC – In
this case, the convicted had already undergone a six month imprisonment
term, before being officially convicted by the Court. The Court held that
since the convict had been convicted and also, the required ‘blemish’ had
also been imposed upon him, it was not necessary to sentence him again
in the name of ‘retributive punishment’, as it would inflict a very big loss
upon the family as well.
3. Sri Ashim Dutta Alias Nilu vs State of West Bengal (1998) 2 CALLT 338
HC – In this case, it was observed that both deterrent and retributive
punishment aim at prevention of the recurrences of the offences by others
passing exemplary punishment for a particular offence. But the civilization
and the societies are progressing rapidly. There is advancement of science
and technology. The literate people and the experts in different branches of
knowledge started thinking in a different way. Eye for an eye, and tooth for

51
 a tooth are no more considered as the correct approach towards the
criminals. Such principle may perpetuate the rule of the Jungle but cannot
ensure the rule of law.

Pros and Cons:

Pros-

1. Acts as a strong deterrent.

2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary.

Cons-

1. Sometimes, may become disproportionate with the seriousness of the

crime.
2. Society develops feelings of vengeance and destructive tendencies follow.
3. The State may become autocratic in its functioning, using the punishment
to torment people.

Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing
any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals
from attempting any crime or repeating the same crime in future. So, it states that
deterring crime by creating a fear is the objective; to set or establish an example for
the individuals or the whole society by punishing the criminal. That simply means,
according to this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it may result maybe that the people of the society will be or
may be aware of the severe punishments for certain kinds of crimes and because of
this fear in the minds of the people of the society, the people may stop from
committing any kind of crime or wrongful act. Here I used the phrase “may stop”
instead of “will stop”. That means, there is a probability of committing any crime or
repeating the same crime.

The deterrent theory of punishment is utilitarian in nature. For a better understanding

we can say like, ‘The man is punished not only because he has done a wrongful act,

52
but also in order to ensure the crime may not be committed.’ It is best expressed in
the word of Burnett, J who said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses
may not be stolen”.

Through making the potential criminals realize that it doesn’t pay to commit a crime,
the deterrent theory hopes to control the crime rate in the society.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The
sociological school creates a relationship between the society and law. It indicates
law to be a social phenomenon, with a direct and/or indirect connection to society.
One of the main aim of the deterrence is to establish an example for the individuals
in the society by creating a fear of punishment.

Now most important question is arrived at; “Who established this deterrent theory of
punishment?”

The concept of deterrent theory can be simplifying to the research of philosophers

such like Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy
Bentham (1748-1832). These social contract thinkers provided the foundation of
modern deterrence in criminology.

In the Hobbesian view, people generally pursue their self-interests, such as material
gain, personal safety and social reputation and make enemies, not caring if they
harm others in the process. Since people are determined to achieve their self-
interests, the result is often conflict and resistance without a fitting Government to
maintain safety. To avoid, people agree to give up their egocentricity as long as
everyone does the same thing, approximately. This is termed as “Social Contract”.
According to this social contract, he stated that individuals are punished for violating

53
the social contract and deterrence is the reason for it to maintain the agreement
between the State and the people, in the form of a social contract workable.

According to Cesare Beccaria, while discussing about punishments, the proportion of

the crime and punishments should be equal for it to serve as a deterrence or have a
deterring value.

According to J. Bentham, who is known as the founder of this theory, a hedonistic

conception of man and that man as such would be deterred from crime if punishment
were applied swiftly, certainly, and severely. But being aware that punishment is an
evil, he says, if the evil of punishment exceeds the evil of the offence, the
punishment will be unprofitable; he would have purchased exemption from one evil
at the expense of another.

From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham,
we came to know that the theory of deterrence consists of 3 major components.
They are as follows:

• Severity: It indicates the degree of punishment. To prevent crime, criminal

law must emphasize penalties to encourage citizen to obey the law.
Excessively severe punishments are unjust. If the punishment is too severe
it may stop individuals from committing any crime. And if the punishment is
not severe enough, it will not deter criminals from committing a crime.

• Certainty: It means making sure that punishments must happen whenever

a criminal act is committed. Philosopher Beccaria believed that if
individuals know that their undesirable acts will be punished, then they will
refrain from offending in the future.
• Celerity: The punishment for any crime must be swift in order to deter
crime. The faster the punishment is awarded and imposed, it has more
effect to deter crime.

Therefore, deterrence theorists believed that if punishment is severe, certain and

swift, then a rational person will measure the gain or loss before committing any
crime and as a result the person will be deterred or stopped from violating the law, if
the loss is greater than the gain.

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According to Austin’s theory, “Law is the command of the Sovereign”. In his
imperative theory, he clearly declared three important things, which are as follows:

1. Sovereign.
2. Command.
3. Sanction.

Austin’s question is that ‘Why do people follow the rule?’. He believes that people will
follow the law because people have a fear of punishments. On the basis of his
beliefs, we can see a small example over here: When people are biking, they wear a
helmet as per biking rules. Now, we can assume that some people wear helmets
genuinely to save themselves from road accidents but on the other hand, some
people wear helmets because of escaping fines or in fear of cancellation of their
biking licence. So, in that case, they know that if they bike rashly or disobey the
biking rules they will be punished by giving huge a amount of fine or their biking
licence will be cancelled. So here we can say that the purpose of the deterrent
theory is successful and applied also.

Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that
there were several punishments like public hanging, not only that but also people
were immersed in hot oil or water. Most penal systems made use of deterrent theory
as the basis of sentencing mechanism till early 19th century.

• In England, punishments were more severe and barbaric in nature to

restrict same crime in the future. At the time of ‘Queen Elizabeth I’,
deterrent theory of punishment was applied for restricting future crimes,
even for too little crimes like ‘pickpocketing’.
• In India also, inhuman punishments are granted.

But, if we discuss or follow this theory in today’s context, then, it will be very clear
that “deterrent theory” is not applicable at all or it may not be useful enough to
prevent or to deter crimes by creating a fear in the minds of people. We have a very
recent example of why deterrent theory is not successful in the case of “Nirbhaya
Rape Case, 2012”. This case is the foremost case to be mentioned while talking
about deterrent theory of punishment. In this judgement, the Supreme Court

55
sentenced four out of six offenders involved in the extremely heinous Delhi gang
rape case to death. Now, the most important questions are-

• Whether the death sentence to the culprits will act as a deterrent?

• Will the number of crimes against women in our society drop down
permanently?
• Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled?

The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter
crime, by creating a fear or establishing an example to the society.’ Now, death
penalty is a severe punishment. In the Nirbhaya case, the Court gave death
sentence to the four convicts for committing gang rape. We can say that it is a great
example for future offenders who will think about committing a crime like rape in
future. So, according to this theory, after Nirbhaya judgment crimes like rape should
not happen. But they are happening till now. Day-by-day, rape cases are increasing
in our society.

In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been
served to “India’s Daughter” and though the decision came after a staggering seven
years, it will help to secure the safety of women and prevent rape cases in the future.
But it seems to further, as starting of the year 2020 has seen a slew of rape cases
continue unabated. As an example, we can see for a recent gang rape case which
was happened at Hathras, Balrampur, on 1st October 2020. So, simply we can see
that there is no improvement through severe punishments also. “Death penalty does
not act as a deter to rape cases”- This is the actual message we have understood.
So that’s why we can say that in today’s generation there is no major implication of
‘Deterrent Theory of Punishment’.

Preventive Theory of punishment

Preventive theory of punishment seeks to prevent prospective crimes by disabling
the criminals. Main object of the preventive theory is transforming the criminal, either
permanently or temporarily. Under this theory the criminals are punished by death
sentence or life imprisonment etc.

Philosophical View of Preventive Theory:

56
Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive
theory of punishment due to its humanizing nature. Philosophy of preventive theory
affirms that the preventive theory serves as an effective deterrent and also a
successful preventive theory depends on the factors of promptness. The profounder
of this theory held that the aim of punishment is to prevent the crimes. The crimes
can be prevented when the criminal and his notorious activities are checked. The
check is possible by disablement. The disablement may be of different types.
Confining inside the prison is a limited form of disablement, that is temporary and
when it is an unlimited form of disablement, that is permanent. It suggests that
imprisonment is the best mode of crime prevention, as it seeks to eliminate offenders
from society, thus disabling them from repeating the crime. The death penalty is also
based on this theory. This theory is another form of deterrent theory. One is to deter
the society while another is to prevent the offender from committing the crime. From
an overall study, we came to know that there are three most important ways of
preventive punishment, they are as follows:

• By creating the fear of punishment.

• By disabling the criminal permanently or temporarily from committing any
other crime.
• By way of reformation or making them a sober citizen of the society.

Case Laws:

1. Dr. Jacob George v state of Kerala 1994 SCC (3) 430: In this case, the
Supreme Court held that the aim of punishment should be deterrent,
reformative, preventive, retributive & compensatory. One theory preferred
over the other is not a sound policy of punishment. Each theory of
punishment should be used independently or incorporated on the basis of
merit of the case. It is also stated that “every saint has a past & every
sinner has a fortune”. Criminals are very much a part of the society so it is
a responsibility of the society also to reform & correct them and make them
sober citizens of the society. Because the prevention of crime is the major
goal of the society and law, both of which cannot be ignored.
2. Surjit Singh v State of Punjab 1967 AIR 1214 SC: In this case, one of the
accused, a policeman entered the house of the deceased with the intention
to commit rape but failed to do so as the as sons of the deceased shouted

57
 for help. Another accused suggested the policeman to kill the deceased.
The accused was held liable under section 450 of the Indian Penal Code.
While on the contrary, the death penalty or capital punishment is more of a
temporary form of disablement.

Incapacitation Theory of punishment

Meaning:

The word “incapacitation” means ‘to prevent the offence by punishing, so that the
future generation fears to commit the criminal act.’ Incapacitation happens either by
removing the person from the society, either temporarily, or permanently, or by some
other method, which restricts him due to physical inability. One of the most common
way of incapacitation is incarceration of the offenders, but in case of severe cases,
capital punishments are also applied. The overall aim of incapacitation is preventing
or restraining the danger in the future.

Definition:

“Incapacitation refers to the restriction of an individual’s freedoms and liberties that

they would normally have in society.”

Purpose of Incapacitation Theory:

One of the primary purposes of this theory is removing the sufficiently dangerous
persons from the society. The risk that is found to be posed by the offenders are
largely a matter of inception. Therefore, if one country treats one offence in one way,
another country will treat the same offence in a different way. For example, in the
U.S., they use incarceration to incapacitate offenders at a much higher rate, than in
other countries. It has been seen that unlike the other theories of punishments like
deterrence, rehabilitation and restitution, the theory of incapacitation simply
rearranges the distribution of offenders in the society so that the rate of crime
decreases in the society. The main aim of the theory of incapacitation is to dissuade
others from the offenders in the past, so that it is not followed by the future
generation.

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Application of the theory:

The theory of incapacitation gets reserved only for those people who are either
sentenced to prison or to life imprisonment. Yet, it also includes things like being
supervised by the departments within the community, like probation and parole.

Origin:

The theory of incapacitation was originated in Britain, during the 18th and the 19th
centuries, where the convicted offenders were often transported to places like
America and Australia. Later in the 21st century, the theory was changed to some
extent, where the offenders were to remain in the primary method of incapacitation
which was found in most of the contemporary penal systems. Therefore, the theory
usually takes the form of imprisonment, which is considered to be the best the form
of incapacitation, rather than other methods of incapacitation.

So, can incapacitation reduce crime?

According to a study conducted by The University of Chicago, it has been proven

that the crime rates can be prevented by 20 per cent. Also, it has been seen that if
other theories are applied like Retributive Theory, Compensatory Theory, etc., then
they lay down a fairly stringent application of putting the criminal behind the bars for
at least 5 years. Also, it can happen to increase the population of the prison if the
rest of the theories are applied. If a small number of high-rate offenders commit a
disproportionately large amount of crime, targeting limited prison resources on these
offenders should achieve increased crime control without increasing prison
populations unreasonably. This policy will depend on the degree of the crime
committed and whether the criminal is early in his carrier.

Compensatory Theory of punishment

Definition:

The main look out in the law of crimes is to penalize the criminal, and/or to seek his
reformation and rehabilitation with all the resources and goodwill available through
the Courts and other Governmental and non-Governmental organizations. It must be

59
seen that the criminals should get proper judgement for their crimes so caused and
the harassment caused to the victim and towards their family members and property.
The victims in a crime can be compensated on mainly two grounds, namely-

1. A criminal who had inflicted an injury against the person (or group of
persons), or the property must be compensated for the loss caused that
has caused to the victim, and
2. The State that has failed to provide safety towards its citizens, must
receive compensation for the loss caused.

Compensation is the true essence of deterrent, reformative and a necessary

contribution of retribution.

Case Laws:

• In the landmark case of DK Basu v. State of West Bengal (1997) 1 SCC

41 the Apex Court held that a victim who is under the custodial right, has
every right to get compensated as her Right to Life, which is under Article
21 of the Constitution, has been breached by the officer of the State.
• In State of Gujarat and Anr. v. Hon’ble High Court of Gujarat, (1998) 7 SCC
392 Justice Thomas had held that, “The Reformative and reparative
theories deserve serious consideration, where the victim(s) of crime or his
family members should get compensated from the wages that is earned in
prison by the criminal.” The Court suggested that the particular State
should enact a comprehensive legislation in respect of his compensation
payable to victim of a crime.

Reformative Theory of punishment

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object
of discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way, an
exertion ought to be made to change him/her during the time of his/her detainment.
For example, he may have executed bad behaviour under conditions which may
never happen again. Hence an effort should be made to transform him during the
hour of his confinement. The object of order should be to accomplish the moral

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difference in the liable party. He ought to be told and perform some craftsmanship or
industry during the hour of his confinement with the objective that he may have the
alternative to start his life again after his conveyance from jail.

History of the Theory:

The human development has consistently been administered under the standard of
an incomparable force. The job and type of pre-eminent force has changed
throughout a long term. Beginning from the primitive type of Government to the
present just, republican and different types of Governments, the obligation of the
incomparable authority has changed a lot. The idea of discipline has additionally
changed like the idea of State duty throughout the long term. The idea of discipline
relied upon the premise of religion and the organization of the Kings. During old
occasions, the idea of discipline was retributive premise, where the hoodlums were
given uncouth type of discipline. Afterward, over the entry of ages, the significance of
common liberties expanded which in essence cleared path for the replacement of
Retributive hypothesis by Reformatory and Rehabilitative hypotheses. Under the
Reformative and Rehabilitative hypotheses, the blamed are given such structures for
discipline which would change them and keep them from perpetrating such
wrongdoings.

The theory of punishment being followed in India with the goal to change the crooks
as opposed to rebuffing them isn’t that compelling in avoidance of the event of
violations in India. The essential idea of law isn’t to be static, but to be dynamic in
nature. At exactly that point the law will have the option to be successful in all fields
of the general public.

The Main Purpose Reformative Theory:

The reason for this hypothesis of discipline is to make the criminal languish over his
bad behaviour. Here the motivation behind the discipline is profoundly customized
and rotates around the mental outlet of the person in question or his family. The
primary reason might be accomplished to parole and probation, which have been
acknowledged as current procedures of improving the guilty parties all around the
globe. Consequently, the backers of this hypothesis legitimize imprisonment not

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exclusively to separate hoodlums and kill them from society. Not many of the
advanced reformative procedures of discipline are essentially concocted for the
treatment of guilty parties as per their mental attributes, for example, probation,
parole, uncertain sentence, exhortation and pardon. The reformative techniques
have demonstrated to be valuable in the event of adolescent misconduct, first
wrongdoers and ladies. Sex cases additionally appear to react well to the reformative
strategy for discipline. All the more as of late, the reformative hypothesis is in effect
widely utilized as a technique for treatment of intellectually denied wrongdoers.

Criticism:

1. Reformative theory anticipates better framework and offices in jail,

legitimate co-appointment between various control and diligent exertion on
their part to shape criminals. It requires gigantic ventures which poor nation
can’t bear the cost of.
2. A great many guiltless individuals who have high respects for law are
finding hard to get fundamental courtesies hypothesizes moral avocation
for giving better offices inside jail.
3. Also, the soundness of the hypothesis is more towards motivators for the
commission of wrongdoing instead of counteraction.
4. Transformation can work out on those individuals who can be improved,
there are individuals who can’t be changed like bad-to-the-bone
lawbreaker, profoundly instructed and proficient hoodlums.
5. This theory disregards possible wrongdoers and people who have
submitted wrongdoing however not inside the arms of law. Further, it
ignores the cases of survivors of violations.
6. Degenerate social ecological is liable for wrongdoing yet not person duty,
is the way of thinking of reformative which is difficult to process. In any
case, it is out of line to excuse the honourable idea of reconstruction as a
complete disappointment. All know about the occasions where untalented,
uninformed and evidently hopeless lawbreakers have created aptitudes in
jail, which have changed them into profoundly valuable people.

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Utilitarian Theory of punishment
The utilitarian hypothesis of discipline tries to rebuff guilty parties to debilitate, or
“hinder,” future bad behaviour. Under the utilitarian philosophy, laws ought to be
utilized to amplify the joy of society. Since wrongdoing and discipline are conflicting
with bliss, they ought to be kept to a base. Utilitarian’s comprehend that a
wrongdoing-free society doesn’t exist, yet they attempt to incur just as much
discipline as is needed to forestall future violations.

The utilitarian hypothesis is “consequentialist” in nature. It perceives that discipline

has ramifications for both the wrongdoer and society and holds that the all-out great
created by the discipline ought to surpass the absolute malevolence. At the end of
the day, discipline ought not be boundless. One delineation of consequentialism in
discipline is the arrival of a jail detainee experiencing an incapacitating sickness. In
the event that the detainee’s demise is fast approaching, society isn’t served by his
proceeded with restriction since he is not, at this point fit for carrying out
wrongdoings.

Under the utilitarian way of thinking, laws that indicate discipline for criminal leads
ought to be intended to dissuade future criminal direct. Discouragement works on a
particular and an overall level. General discouragement implies that the discipline
ought to keep others from carrying out criminal acts. The discipline fills in as an
illustration to the remainder of society, and it advises others that criminal conduct will
be rebuffed. Explicit discouragement implies that the discipline ought to keep similar
individual from perpetrating violations. Explicit prevention works in two different
ways. Initially, a guilty party might be placed in prison or jail to truly keep her from
perpetrating another wrongdoing for a predefined period. Secondly, this crippling is
intended to be undesirable to such an extent that it will demoralize the guilty party
from rehashing her criminal conduct.

Does Utilitarian Theory Support Death Penalty:

The apparent seriousness of capital punishment, there has been an exceptional

debate encompassing the issue. Rivals of capital punishment pronounce that it is
savage and harsh thus the administration ought to get rid of it. Then again, its allies
keep up that capital punishment is a fundamental type of discipline that ought to be
utilized on the most horrible guilty parties in the public eye. The exceptionally

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captivated discussion on capital punishment has kept on existing for quite a long
time. Moral hypotheses can be utilized to concoct an answer for this exceptionally
dubious issue. Morals figure out what is the correct strategy in a given circumstance.
Various strong moral hypotheses have been proposed by researchers and scholars
throughout the long term. This paper will utilize one of the most broadly applied
moral hypotheses, which is utilitarianism, to exhibit that capital punishment is for
sure legitimized.

Review of the Utilitarian Theory:

From a utilitarian viewpoint, activities that advance the satisfaction of the larger part
in the public arena ought to be sought after while those that prevent this bliss ought
to be evaded. The utilitarian hypothesis can be applied to the issue of the death
penalty since this type of discipline produces both positive and negative results.

Net Benefits:

The principal significant advantage offered by capital punishment is that it assumes a

huge discouragement job. The most significant objective of the criminal equity
framework is to debilitate individuals from taking part in wrongdoing.

This is accomplished by joining disciplines to violations with the goal that an

individual sees the benefits of taking part in unlawful activities as being exceeded by
the results. In that capacity, an ideal society would be one where nobody is rebuffed
since the danger of discipline shields everybody from taking part in wrongdoing.
Capital punishment is the most extreme discipline and its accessibility is probably
going to dissuade individuals who probably won’t be frightened by long jail
sentences.

From a utilitarian point of view, the prevention job is moral since it adds to the
general satisfaction of the general public. At the point when crooks are deflected
from participating in wrongdoing, the general public is more secure and individuals
appreciate the harmony and security in their networks.

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Another huge advantage offered by capital punishment to the general public is that it
prompts the perpetual debilitation of the indicted individual. Not at all like different
types of discipline which just confine a portion of the opportunities of the guilty party,
capital punishment removes his life.

Conclusion
Thus, we saw the different Theories of Punishments in detail. We understood what
are the guiding principles behind them, how are they different from one another and
some very important Case Laws pertaining to the same. However, we need to
understand very clearly that punishment is something which should be inflicted very
carefully. As the famous saying goes that ‘Let go of a hundred guilty, rather to
punish an innocent’, we need to understand that inflicting a punishment upon
someone changes his mental, physical and social status drastically. It has a very
grave impact upon him and his being. Thus, while administering criminal justice, utter
carefulness has to be executed, or else the very principles of justice would go for a
toss.

00000000000000000000000000000000000000000000000000000

Types of Punishments

1. Death Sentence

The death sentence is a punishment which is sanctioned by the government and

ordered by the court where a person is put to death for a crime acted by him. It is
also referred to as ‘Capital Punishment’. The act of carrying out such practice is
called execution. As per the Amnesty International survey, the report on as of July
2018 is 56 countries retain capital punishment and 106 countries have completely
abolished capital punishment for all crimes. In India, the death penalty is given by the
method of hanging. The other ways through which death sentences executed at
world scenarios are stoning, sawing, blowing from a gun, lethal injection,
electrocution, etc.

The subject of death sentence always has been a matter of controversy. While
considering the Constitution as the supreme, the validity of death sentence v/s
fundamental rights constantly came forward for the debates. However, the death
sentences are rarely given in the Indian criminal courts. In the case of Bachan Singh
vs State Of Punjab, the Supreme Court held that capital punishment shall be given in
the “rarest of the rare” case. However, what constitutes the “rarest of the rare cases”
is not prescribed by the Supreme Court or by the legislature.

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In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC ruled that the
approach towards imposing capital punishment shall be balanced on mitigating and
aggravating factors of the crime. However, in the case of Bachan Singh, for the first
time, this approach was called into question due to the amendments in the Cr.P.C.
As per the amendment in the Cr.P.C. in the offence of murder the offender shall be
punished with the sentence of life imprisonment. After taking due consideration of
the amendment, the Court stated that capital punishment shall be given in special
cases only.

However, in the case of Sangeet & Anr. v. State of Haryana, the court noted that the
approach laid down in Bachan Singh’s case is not fully adopted. The courts still give
primacy to the crime and not to the circumstances of the criminal. The balance of the
mitigating and aggravating factors have taken a bit of a back seat in ordering
punishment.

The provisions under which the death penalty is given as punishment under IPC are
as follows:

• Section 115– Abetment for an offence punishable with death or imprisonment

for life (if offence not committed);
• Section 118– Concealing design to commit an offence punishable with death
or imprisonment for life.
• Section 121– When armed rebellion (i.e. waging, abetting to waging of war or
attempting to wage war) is made against the constitutionally and legally
established government;
• Section 132– Uprising, supporting and encouraging the formation of the
mutinous group of people in the nations armed forces;
• Section 194- With the intent to obtain a death sentence to an innocent by
presenting concocted vexatious proof;
• Section 302– Causing murder of another;
• Section 305– Abetting suicide to an insane or minor person;
• Section 303– When a life convict person murders another person;
• Section 396– Causing dacoity with murder;
• Section 364A– Kidnapping;
• Section
376A (as per the Criminal Law Amendment Act, 2013)- Rape
Some other Acts under which the death penalty covered as punishment are:

1. Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of

sati.
2. Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug
trafficking in cases of repeat offences.
However, the death penalty as a punishment is an exception to certain persons like
intellectually disabled, pregnant women and minors.

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Procedure When Death Penalty is Imposed

The death sentence is executed by two modes in India:

1. Hanging by the neck till death (this is mostly ordered by the Courts);
2. Being shot to death.
The various states of India have jail manuals that provide a method for the execution
of death sentences. In accordance with Section 354(5) of the Code of Criminal
Procedure Act, 1950 hanging by neck till death is the mode of the execution. After
the death sentence is awarded by the court, the accused have the right to appeal the
order. After exhausting all remedies and confirmation of the order, the execution is
made as per procedure under Section 354(5) of Cr.P.C. The process of execution is
provided separately under the Air Force Act, 1950, the Army Act, 1950 and the Navy
Act, 1957. However, the procedure under the above-mentioned defence acts is
applicable to defence officers only.

The Prison manual of different states of India gives detailed instructions about the
execution particulars. Some are as follows:

1. The prisoner who is convicted for death sentence shall be given a proper
diet, examined twice a day. The officers shall satisfy that the prisoner has
no article by which he can attempt for suicide.
2. The description of the rope and testing of rope.
3. Regulation of the drop while executing the hanging.
4. Time of executions.

Constitutional Validity of Death Penalty

The issue of the death penalty is not a recent issue. It has been discussed, studied
and debated for a prolonged time. However, till today no conclusion is drawn about
the abolition or retention of the provision. The death penalty has been the mode of
punishment from the British era. Various countries have abolished this practice.
However, in Arab countries the principle of retributive punishment i.e. “an eye for an
eye” is practised. In the list of retention countries as mentioned above, India is one of
them which have retained to give death penalty unless some ‘special reasons’ or
‘rarest of rare case’ condition arise.

Under Article 21 of the Constitution of India, the right to life and liberty is guaranteed,
including the right to live with human dignity. There are certain exceptions that are
recognized by the law wherein in the name of law and public order the state can
restrict the rights. In Maneka Gandhi v. Union of India, the SC laid down the principle
of “due process” through which a state can restrict the citizens from enjoying their
rights. In the case of the death penalty the due process can be as follows:

• Death penalty to be given in ‘rarest of the rare’ cases;

• The accused shall be given the ‘right to heard’;
• As per Article 136, the death penalty shall be confirmed by the High Court;

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 • Under Section 379 of the Cr.P.C., the accused have the right to appeal in the
Supreme Court;
• Under Section 433 and 434 Cr.P.C., the accused may pray for commutation,
forgiveness, etc. of the sentence.
In various cases, the constitutional validity of the death penalty was challenged. In
the case of Jagmohan Singh v. State of U.P, the argument was that the death
penalty is in violation of Article 14 (Right to Equality), Article 19 (Right to Freedom)
and “right to life” i.e. Article 21, which has been unanimously rejected by the five-
judge bench of the Supreme Court. Further, it was contended that as per Cr.P.C. the
procedure is confined to findings of guilt and not awarding death sentence. However,
the Supreme Court held that the death sentence is a choice by the court made
according to the procedure established by law and the choice between capital
sentence or imprisonment of life is based on the circumstances, nature and facts of
the case brought during the trial.

In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer had
empathetically stressed that the death penalty is violative of articles 14, 19 and 21.
With this the Justice Iyer said two conditions under which the death penalty can be
given:

• While giving the death penalty the court shall record special reasons.
• Only in extraordinary cases the death penalty to be imposed.
However, in the case of Bachan Singh vs. State of Punjab, within one year the five-
judge bench (4:1- Bhagwati J. dissenting) overruled the decision of Rajendra
Prasad’s case. The judgment expressed that the death penalty is not violative of
Article 14,19 and 21 of the Constitution of India and pronounced that in the “rare of
the rarest case” i.e. those cases in which the collective conscience of the community
is so shocked that it will expect the judiciary to deliver the death penalty on the
accused the death penalty can be ordered. Although, Justice Bhagwati in his
dissenting judgment stated that the death penalty is not only being violative to Article
14 and 21 but also undesirable because of several other reasons.

Further, in the case of Machhi Singh vs. State of Punjab, the Supreme Court laid
down the broad outlines of the circumstances under which the death sentence can
be imposed. The court pointed out that under five categories of cases the extreme
penalty can be given. Those points are as follows:

1. Manner of commission of murder;

2. Motive;
3. The magnitude of the crime;
4. Anti-social abhorrent nature of the crime;
5. The personality of the victim of murder.
Similarly, in the case of Sher Singh v. State of Punjab and Triveniben vs. State of
Gujarat, the Apex court asserted affirmatively that the death penalty does not
invalidate the rights enriched under the Constitution of India.

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In the case of Mithu v. State of Punjab, the Supreme Court held that the mandatory
death penalty is invalid and unconstitutional in nature. However, no comments were
made on the consequent legislation for drug and criminal offences wherein the death
penalty is considered mandatory. But at the same time, Indian courts actually applied
the mandatory death penalty for these crimes.

However, recently in the case of Channu Lal Verma v. State of Chattisgarh, the
question of the constitutional validity of the death penalty came to the three-judge
bench. The Bench Constituted of Justice Kurian Joseph, Justice Deepak Gupta, and
Justice Hemant Gupta. The bench upheld the decision of the Bachan Singh case.
However, Justice Kurian Joseph had a different view, he said that “there is no
substantial proof for the death penalty as a deterrent to crime”.

Evolving Parameters for Imposition of Death Sentence

The basic evolving parameters for the imposition of Death Sentence are:

1. The punishment shall not be so severe, so as to degrade the dignity of

humans;
2. The state shall not arbitrarily inflict a severe punishment;
3. In a contemporary society such severe punishment shall not be
unacceptable;
4. Such severe punishment must not be unnecessary.
However, there are other two questions which can be pondered by the Court while
imposing the death penalty as punishment:

1. There is something uncommon in the crime which calls for the imposition of
the death penalty and renders the sentence of imprisonment for life as
inadequate.
2. Even after giving maximum weightage to the mitigating factors which are in
favour of the offender there is no other alternative other than imposing the
death sentence.

Sentencing Procedure: Mandatory Provision of Section 235(2), Code of

Criminal Procedure 1973
In the ‘41st report of Law Commission’, it recommended for the insertion of new
provision which made a significant contribution in acknowledging the cardinal feature
of procedural fairness and natural justice. Under the old code, there was no statutory
opportunity given to the accused to explain the mitigating factor which is relevant to
decide the nature of the punishment. However, after the recommendation of the
Commission introduction of Section 235(2) and Section 248(2) of the Cr.P.C. was
made. The new provisions provided an opportunity for the convict to place necessary
information to the court to determine the mitigating factors and decide the case
accordingly. Therefore, the choice of sentence shall be made after following the
procedure under section 235(2) duly followed by the court. In the cases of death
sentence the importance of “right of hearing” has been overemphasized.

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In 1976, in the case of Santa Singh v. State of Punjab, the Supreme Court explained
the nature and scope of Section 235(2). The Bench remarked that “The provision is
an acknowledgement of the fact that sentencing is an important stage in the criminal
justice administration as the adjudication of guilt. And in no case, it should be
consigned to a subsidiary position. It seeks to personalize the punishment so that the
reformist component remains as much operative as the deterrent element. It is, for
this reason, the facts of social and personal nature, maybe irrelevant for guilt
determination, should be brought to the notice of the court at the time of actual
determination of sentence”.

Further, the court also opined about the meaning of the word ‘hearing’. The hearing
is not only limited to the oral submissions but it is wider than that. It gives both
parties the right to put facts and materials which can be essential for the questions of
sentencing. The Court stressed on the point that it is mandatory for the lower courts
to comply with this provision. Not complying with Section 235(2) will not only be
considered as mere irregularity, but that shall vitiate the sentence.

In the case of Allauddin Mian v. State of Bihar, Justice Ahmadi emphasized the
purpose of Section 235(2):

1. It gives the accused an opportunity of being heard, which satisfies the rule
of natural justice;
2. To determine the sentence of the award it assists the court.

Case laws on Death Sentence (When the death sentence is confirmed)

(1) State of Tamil Nadu v Nalini

In the case of State of Tamil Nadu v Nalini, the case was filed as an appeal against
the judgment of the High Court of Tamil Nadu. This case is popularly known as Rajiv
Gandhi’s assassination case. The offenders were accused under Indian Evidence
Act, 1872, Indian Wireless Telegraphy Act, 1933, The Foreigners Act, 1946,
Passports Act, 1967, Arms Act, 1959, Explosive Substances Act, 1908, Indian Penal
Code, 1908 (IPC), TADA Rules, The Terrorist And Disruptive Activities (Prevention)
Act, 1987. In the case, there were 26 accused out of which four accused were
punished death penalty by the Apex Court. The accused were from the LTTE
(Liberation Tigers of Tamil Eelam) group and were seeking revenge for the Indian
government’s decision for sending army troops in Srilanka. However, as per recent
update Nalini Sriharan, V Sriharan, and Murghan have applied plea for mercy killing
as there is no response to their mercy petition till date.

(2) Jai Kumar v State of Madhya Pradesh

In Jai Kumar v State of Madhya Pradesh case, an appeal by the grant of special
leave against the order of the Division bench of the High Court of Madhya Pradesh
was made. In this case, the accused brutally murdered sister-in-law and 7-year-old
niece. The Court considered the factual matrix of the case and observed that the act
of murder was not done in the rage and the accused himself under Section 313 of
the Cr.P.C admitted the murder. Thereby, the Supreme Court upheld the verdict of
the Sessions Court and the High Court of Madhya Pradesh.
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(3) Suresh Chandra Bahri v State of Bihar
The case of Suresh Chandra Bahri v State of Bihar was filed as an appeal from the
High Court of Patna. The Sessions Court convicted the three appellants named
Suresh Bahri, Gurbachan Singh and Raj Pal Sharma for the death penalty
under Section 302 and Section 120 B of the IPC. The High Court of Patna dismissed
the appeal affirming the sentence awarded by the trial court. In this case, the
accused killed Urshia Bahri and her two children because of some dispute in the
property. The Supreme Court confirmed the death penalty of Suresh Bahri, whereas
the death penalty of the Gurbachan Singh and Raj Pal Sharma was commuted to a
life sentence.

(4) Dhananjoy Chatterjee alias Dhana v State of West Bengal

In the 21st century, the case of Dhananjoy Chatterjee alias Dhana v State of West
Bengal can be called as a historic case as the accused was the first person who was
lawfully executed for a crime not related to terrorism. The accused was working as a
watchman in the building of the deceased. He had raped and murdered an 18-year-
old girl at her own home. The trial court ordered the death penalty under Section 302
of the IPC. The same has been confirmed by the High Court of West Bengal. While
the appeal in the Supreme Court, the court held that case will be considered under
“the rarest of the rare” case, thereby there will be no commutation of the punishment.

(5) Sushil Murmu v State of Jharkhand

In the case of Sushil Murmu v State of Jharkhand, the accused was punished with
the death penalty for the sacrifice before Goddess Kali of a 9-year-old child. The
accused made the sacrifice for his own prosperity. The trial court held the accused
liable under Section 302 and 201 of the IPC, 1860 and the Jharkhand High Court
confirmed the death penalty. The Appeal was made to the Supreme Court, however,
the Apex court upheld the order of the lower court and affirmed that this is an
exemplary case which can be treated as the rarest of rare case, therefore there is no
exception to be given to this case.

(6) Holiram Bardokti v State of Assam

In the case of Holiram Bardokti v State of Assam, there were 17 accused. The
appellant is one of the accused who has been awarded the death penalty under
Section 302 read with Section 149 of the IPC by the Sessions Judge. The same has
been confirmed by the High Court of Assam. The accused was being held for two
murders i.e. of Narayan Bordoloi, Padam Bordoloi and Nayanmoni (6-year-old child).
The Supreme Court observed that the appellant had no spark of kindness or
compassion while burning the bodies and cutting the body into pieces, the whole
accident shocked the collective conscience of the community. Therefore, the Apex
Court upheld the order of the lower courts and observed that the court is not able to
find any mitigating factors to refrain from the death penalty.

Cases laws on Death Sentence (When Death Sentence has been Commuted to Life
Imprisonment)

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(1) Om Prakash v State of Haryana
In the case of Om Prakash v State of Haryana, the accused named Om Prakash was
guilty of seven murders, thereby the Sessions court held him guilty under Section
302 of IPC, which was upheld by the High Court of Punjab and Haryana. There were
two other accused but they were given life imprisonment and a fine of Rs.2000.
During the appeal to the Apex Court, the court observed that mitigating factors of the
case and considering other circumstances of the case, this can not be counted under
the rarest of rare cases. The court considering the background of the case found that
the murder was acted due to constant harassment of the family members (deceased
ones).

Further, the court observed that this is not the case which was committed to fulfil the
lust for women or wealth, neither it is for money, the act does not include any anti-
social element like kidnapping or trafficking, the act does not include any dealing in
dangerous drugs, nor any act committed for political or power ambitions. And further,
the accused was working in BSF at the age of 23 with no criminal antecedents.
Thereby, the Apex Court converted the death penalty to the sentence of
imprisonment for life.

(2) Rajendra Rai v. State of Bihar

In the case of Rajendra Rai v. State of Bihar, the accused were held guilty of the
murder of Krishnandan (deceased 1) and Sir Bahadur (the son of deceased 1), as
the accused and deceased had a dispute over the land situated between their
houses. The Trial court-ordered death penalty and the High Court confirmed the
order. However, the Apex Court was of the view that the case cannot be regarded
under the rarest of rare cases. Thereby the death penalty was reduced to life
imprisonment.

(3) Kishori v State of Delhi

In the case of Kishori v State of Delhi, the accused was in relation to the mob attack
which occurred against the Sikh community immediately after the assassination of
Mrs. Indira Gandhi, the then Prime Minister which broke out in several places
including Delhi. The appellant was held to be a part of the mob. The Sessions court
was of the view that the accused deserves a death sentence, as he has been
convicted for several murders and he killed innumerable Sikhs in a brutal manner.
The High Court of Delhi confirmed the order. However, the Apex Court had a
different opinion. The Court said that the acts conducted during the chain of events
shall be considered as one. Further, the act of the accused was not a personal
action, was just a part of the group activity which can not be called as a systematic
or organized activity. Therefore, the Apex court felt that the act of the accused as a
result of the temporary frenzy act, so the court reduced the death penalty to life
imprisonment.

(4) State v Paltan Mallah & Ors

In the case of State Of M.P Through C.B.I., Etc vs Paltan Mallah, the deceased
Shankar Guha Yogi, who was a popular and powerful trade union leader was killed.
As he had been working for the welfare of the labour, the industrial unit at Bhillai and

72
Durg wanted him to be out of their way. The deceased was the leader of the labourer
organization named “CHATTISGARH MUKTI MORCHA” (‘CMM’). The workers at
Bhillai asked for help in the protest. To help those labourers SG Yogi shifted to Bhilla
with his servant Bhahal Ram. There was a widespread movement, due to this, the
leaders of the CMM were attacked by the industrialists. The deceased apprehended
that there is a serious threat to his life. On the midnight of 27.09.1991, Bahul Ram
heard a noise from the neighbouring room where the deceased was sleeping. The
servant found Niyogi lying on the bed in pain because of gunshot injuries. However,
the accused Paltan Mallah and others were acquitted by the Sessions and High
Court due to lack of evidence. However, the Supreme Court reviewed the matter and
reversed the order of acquittal by the lower court. As there was a long lapse of time
from the lower court’s decision of acquittal to appeal, the court sentenced him to
undergo imprisonment of life.

(5) Sambhal Singh v State of Uttar Pradesh

In the case of Sambhal Singh v. State of UP, wherein the four accused (Sambhal
Singh, Jag Mohan Singh, Krishna Mohan Singh, and Hari Mohan Singh) murdered
the three children of the Munshi Mall (deceased- the brother of the Sambhal Singh)
because of a family land dispute. The Sessions court found them guilty and the High
Court confirmed the sentence. However, the Apex Court observed that the age of the
four accused was not considered by the lower court. Sambhal Singh was old and the
other three were young, therefore, the court reduced the punishment of death
penalty to life imprisonment.

(6) Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka

In the case Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka,
the accused was the second husband of the deceased Shakereh. The deceased
came from a highly reputed and wealthy family. The accused murdered the
deceased after a well-designed plan and executed it accordingly for attaining
property which was on her name. The Session Court ordered the death penalty and
the same was confirmed by the High Court of Karnataka. However, the Supreme
Court converted the death penalty to life imprisonment. This is an important case
from the point of view of sentencing and remitting the sentence. The Apex Court
clearly differentiated the sentence of imprisonment for life from ordinary life
imprisonment and held that the remission is not applicable to the cases where the
imprisonment of life is given as a substitute to the death penalty, it means the
accused will be in imprisonment till his last breath.

Commutation of Death Sentence by the State or Central Government Scope

The powers of commutation of the death sentence by the State and Central
government is provided under the following provisions of the Constitution:

1. Article 72– gives pardoning power to the President.

2. Article 161– gives pardoning power to the Governor.
The difference between Article 161 and Article 72 are:

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 1. Article 161 is narrower than Article 72.
2. Article 72 covers the punishment sentenced by a Court Martial, however,
Governor is not entitled with such powers.
3. Article 72 covers all death sentences, however, under the ambit of Article
161 death sentences are not covered.

Imprisonment for Life

Life imprisonment is one of the types of punishment which is recognized under

Section 53 of the IPC. Earlier this was also known as transportation for life. This
punishment is given for serious crimes wherein the convicted remains in prison until
his/her last breath.

Scope of Section 57
Section 57 of the IPC is used when fractions of terms of punishment need to be
calculated. However, it is important to understand that this section does not give any
implied or explicit right to the prisoner to reduce his life imprisonment to 20 years of
the sentence.

Under some sections like Section 116,119,120 and 511 of the Code, the prisoners
can ask for relief under this section.

Is Life Sentence does Period of 14 Years?

In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex Court clearly
stated that reading Section 55 of the Code and Section 433 and 433 A of Cr.P.C, life
imprisonment is not confined to 14 years of imprisonment, only the appropriate
government can commute the life imprisonment of the prisoner.

The government can commute the punishment of life imprisonment to the

imprisonment of term equal to or less than 14 years, or if the prisoner exceeded 14
years of imprisonment then he can be released.

In 1961 in Gopal Vinayak Godse vs. The State of Maharashtra & Ors., the question
‘whether there is any section in the law wherein the life imprisonment without formal
remission by the appropriate government can be automatically treated as one for a
definite period?’ came to the Apex Court as a question of law. Answering the
question the court pointed out the observation made by the judicial committee which
stated that, the transportation for life shall be deemed to be transportation for 20
years, however, this does not say that it shall be deemed to be considered the same
for all purposes. Further, the provisions under which transportation for life has been
amended to imprisonment for life can also not be put under Section 57 IPC.
Therefore, a sentence of imprisonment for life or transportation for life must prima
facie need to be considered as imprisonment or transportation for the whole life of
the prisoner till his natural death.

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The distinction between ‘Commutation’ under Section 55, Indian Penal Code 1860,
and Section 433, Code of Criminal Procedure 1973
There is a thin line difference between Section 55, IPC and Section 433, Cr.P.C.
Section 55 of IPC covers only the commutation of life imprisonment for a term not
exceeding 14 years. Whereas Section 433 of Cr.P.C. covers the following powers of
commutation to the appropriate government:

1. Death sentence- to any other punishment can be given which is recognised

under the IPC.
2. Life imprisonment- to imprisonment not exceeding 14 years or fine.
3. Sentence of rigorous imprisonment- to any term of simple imprisonment
(within the term he is convicted ) or fine.
4. Sentence of simple imprisonment- Fine.
However, both provisions give power to the appropriate government to commute the
sentencing of the offender without the consent of the offender. For the understanding
of the section, the appropriate government can be either State or Central
Government. If the order is passed under the matter which is exclusively covered by
the union list, then the central government will be considered as an appropriate
government. Otherwise, in all other cases, the State Government will have the power
to commute the sentence.

In the case of Harishankar, Gayaprasad Jaiswal vs State Of Gujarat, the Gujarat

High Court observed that Section 55 of IPC is independent of Section 433 (b) of
Cr.P.C.

Imprisonment

The general meaning of imprisonment means captivity or to put someone in prison.

Under Section 53 of IPC, imprisonment can be of two types. One is simple and the
other is rigorous. As per Section 60 of the IPC, the competent court has the
discretion to decide the description of sentencing. It can be of various types, like:

1. Wholly or partly rigorous; or

2. Wholly or partly simple; or
3. Any term to be rigorous and the rest simple.

Minimum Wages for Prisoners

The prisoners who are prisoned in jail get wages for doing work inside the jail. The
work done by them either can be voluntary or it can be part of their punishment. The
wages of the prisoners are fixed as per their skills. Their classification is based on a)
skilled, b) semi-skilled and c) unskilled.

Kerala High Court was the first High Court which took the initiative of giving minimum
wages to the prisoners. The National Human Rights Commission (NHRC) after
taking into the recommendation of the Mulla Committee proposed Indian Prisons Bill

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1996. As per the Bill, it was prescribed that the wages should be fair, adequate and
equitable wage rates. While considering the minimum wage rate it shall be prevalent
to each State and Union territory agricultural, industry, etc. wage rate. Units of work
shall also be prescribed for such minimum wages. The average per capita cost of the
food and clothing shall be reduced from the wages and the remaining wages shall be
paid to the prisoners.

The wages are given on per day basis. The idea of the prisoner’s wage is to
compensate the victim or the relative of the victim from the fund made by the
prisoner’s wage. As per Prison Statistics India 2015 of National Crime Records
Bureau (NCRB), the highest wages were paid in Puducherry, followed by Delhi’s
Tihar and Rajasthan. The wages for skilled varied from Rs.180- Rs.150, for
semiskilled Rs.160- Rs.112 and for unskilled Rs.150- Rs.103 as per the top three
high waged states.

Forfeiture of Property

Forfeiture generally means the loss of property without any compensation in return,
which is the result of the default caused by the person in terms of contractual
obligation, or in paying penalty for illegal conduct.

In two provisions the forfeiture of the property has been abolished:

1. Under Section 126 for committing depredation on territories of Power at

peace with the Government of India.
2. Under Section 127 for receiving property taken during war or depredation
mentioned in sections 126 and 126 of IPC.

Fine

The court may impose a fine as an alternative for imprisonment or can add it is an
addition to the imprisonment. In certain cases the fine is added along with
imprisonment. Section 63 to 69 covers various fines under the IPC. However, as
per Section 64 of the Code, when there is a default in the payment of a fine, the
court may order for imprisonment.

Amount of Fine should not be Excessive

As per Section 63 of the IPC, when the sum is not expressed under the provisions of
the Code, the amount of fine to which the offender is liable is unlimited, however, the
fine shall not be excessive.

In the case of Palaniappa Gounder v. State of Tamil Nadu, the Apex Court stated
that the sentence given by the court shall be proportionate to the nature of the
offence which includes the sentence of fine. And the punishment shall not be unduly
excessive.

Sentence of Imprisonment for Non-payment of Fine

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Under IPC Section 64, the following offences are covered:

1. Imprisonment with fine;

2. Imprisonment or fine;
3. Fine only and where the offender is sentenced to:
(i) imprisonment; or

(ii) fine or both.

In such cases, the court of competence shall direct the sentence to the offender for a
certain term. Under Section 66 of the IPC, the court has the discretion to provide any
description for the imprisonment.

In the case of H.M Treasury (1957), the court said that in the case if the death of the
convict has occurred then also the fine will be recovered from his property.

Scope of Section 65
As per Section 65 of IPC, the court shall limit the imprisonment when the offender is
sentenced to imprisonment and fine because of non-payment of fine. The limit of
imprisonment shall not exceed one-fourth of the term of imprisonment which is the
maximum period of the particular offence.

Scope of Section 67
Under Section 67 of IPC, the offences for which this section will be applicable is the
offence which is punishable with fine only.

1. The imprisonment so awarded shall be simple only;

2. However, the term shall not exceed the following scale:

• If fine does not exceed Rs. 50- the term shall not exceed two months;
• If fine does not exceed Rs. 100- the term shall not exceed four months;
• If fine exceeding of Rs. 100 to any amount- term shall not exceed six months.

Recovery of Fine
Under Sec 421 of the Cr.P.C., the Court after passing the sentence can take the
action for the recovery of the fine in two ways:

1. The court can issue a warrant to levy the amount by attaching and selling
any movable property which belongs to the offender; or
2. Can issue a warrant to the collector of the district at the place of living of the
offender, authorizing him to take the money from the immovable property or
movable property or both.
3. Provided that such actions shall not be ordered by the court if the offender
has undergone imprisonment due to the default he made for the payment of
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 the fine. Further, if the court gives any such order as after the offender has
undergone imprisonment, then the court shall give special reasons for the
same.
Further, in the case of Raju Tiwari v. State of Chhattisgarh, the Chhattisgarh High
Court stated that without giving a proper ‘special reason’ the court can not order for
the levy of money under Section 421 of CrPC when the offender already had
undergone imprisonment for non-payment.

Conviction for Doubtful Offences

As per Section 72 of the IPC, when there is doubt regarding which offence has been
committed by the offender and there is a problem to get evidence for the offences
committed by the offender, in such circumstances the court can give the lowest
punishment if the same punishment provided for all.

Solitary Confinement

Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The Code gives the
description of the way punishment to be ordered by the Court. While giving solitary
confinement the court shall keep in mind not to exceed three months in total. The
scale is as follows:

• If the term not exceeds more than six months- Sol. Conf. not exceeding one
month;
• If the term exceeds more than six months but not exceed one year- Sol. Conf.
not exceeding two months;
• Ifthe term exceeds one year- Sol. Conf. not exceeding three months.
Section 74 of the IPC gives the limit of Solitary Confinement while executing the Sol.
Conf. the duration shall not exceed fourteen days.

And further, if the solitary confinement given exceed three months, then confinement
shall not exceed 7 days in one month.

Scope of the Sections Providing Solitary Confinement

In the case of Sunil Batra Etc vs Delhi Administration And Ors. the court observed
that the Sol. Conf. should not be ordered unless it is deemed to be required as per
the offence committed by the offender. The offence shall be extreme violence or the
commission of the offence shall be brutally committed by the offender. However, the
court felt that Sol. Conf. inhumane and horrendous.

In the case of Smt. Triveniben & Ors vs State Of Gujarat & Ors, the court had a
similar view and held that under Sec 30 (2) of the Prisons Act, the jail authorities do
not have right to Sol. confine the prisoner who is under sentence of death.

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Enhanced Punishment : Scope of Section 75

Under Section 75 of the Code when a person is convicted for the second time of an
offence which is punishable under Chapter XII (Offences Relating to Coin and
Government Stamps) or Chapter XVII (Offences Against Property), if sentenced for
more than three years imprisonment, they are liable to greatly enhanced sentence.

However, even when it seems like under Section 348 of the Cr.P.C. the magistrate is
competent, the magistrate is not competent to award sentence under this provision
when viewed with the amendment in Section 30 of Cr.P.C. wherein the Session
Judge has the power to adjudicate such matters. Even though Section 75 makes
certain classes of cases liable to be enhanced, it is not obligatory to the Court to do
so while sentencing.generally this provision is used to give a deterrent effect.
Further, it needs to be noted that the previous convictions for the attempt to commit
an offence not covered under the ambit of this section.

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