UNIT - I. Preamble to the IPC - Whereas it is expedient to provide a general penal code for India, it is enacted as follows:

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1 trictly for Internal Circulation - KCL UNIT - I INTRODUCTION INTRODUCTION 1. Indian Penal Code 1860 is the general penal code of India. 2. The first law Commission of India was constituted in 1834 under the Chairmanship of Lord Macaulay. This Commission prepared the draft of IPC in ir Beranel Peacock and ir J.W. Colwille revised the draft of IPC. 4. The code was passed on 6th Oct It came into force w.e.f. 1st Jan The code came into force w.e.f. 1st Oct, 1963 in Goa, Daman, Diu & Pondicherry. 5. The code applies to the whole of India except the state of J&K. Preamble to the IPC - Whereas it is expedient to provide a general penal code for India, it is enacted as follows: The Preamble suggests that: (i) (ii) The code is not exhaustive. It is only a general penal code for India. The Indian Penal Code consists of 511 sections. It defines certain crimes in an elaborative sense. For convenience we can divide the code in to two parts. General Provisions (ec ) pecific offences (ec ) Intra Territorial (ec. 1,2) GENERAL PROVIION (EC ) Territorial Operation of Code Extra Territorial (ec. 3,4) General Explanation ec. 6-32, 36 ec A Joint Liability ec Punishments ec ec. 73, 74 ec. 71, 72, 75 General Exception (ec ) Abetment (ec ) 1

2 trictly for Internal Circulation - KCL pecific Offences (ection 120A to 511) Criminal Conspiracy ( B) Offences Against the tate ( ) Offence related to Army, AR, Navy, Force ( ) Offence against Public Tranguility ( ) Offences by or relating to Public ervants ( ) Offence Related to Elections ( 171 A-171) pecific Offences DEFINITION OF CRIME Contempt of Public ervants ( ) Giving False Evidence, offences Against Pub. Jus. ( ) Offences relating to Coin & Govt. tamps ( A) Offences Affecting (1) Public Health (2) afety, Convenience (Decency & Moral ( A) Offence Related to Religion ( ) Offence Against Human Body ( ) Offence Against Property ( ) Offence Relating to Document and to Property Marts ( E) Criminal Breach of Contract ( ) Offence Related to Marriage ( ) Defamation ( ) Criminal Intimidation, Insults, Annoyance ( ) Attempts to Commit Offences ( 511) Crime is what the tate has by an act of legislature definitely declared as punishable. The I.P.C. no where defines what is Crime. A crime can be said to be an act of commission or omission, contrary to law, tending to the prejudice of community for which punishments can be inflicted as the result of judicial proceeding. It tends directly to the prejudice of community, while torts tends more directly and immediately to the prejudice of a private right. To define Crime is a task which so far has not been satisfactorily accomplished by any writer. o it would be appropriate to examine some of the definitions in order to understand the crime in correct Perspective. "Commentaries on the Laws of England" define crime as - "An act committed or omitted in violation of public law forbidding or commanding it." Blackstone - "A crime is a violation of public rights and duties to the whole community." 2

3 trictly for Internal Circulation - KCL tephen - modified the definition of Blackstone as - "A crime is a violation of right considered in reference to the evil tendency of such violation as regards the community at large." This definition is not fully free from error, it narrows the scope of crime. The definition given by Blackstone and tephen further stresses that crimes are those breaches of laws which injure the community. Romans define crime as "delicta publica" (Public wrong) and criminal trial as "judica publica (Public Justice). Kenny pointed out that "all the acts that are injurious to the community are not necessarily crimes." One who commits a wrong is said to be liable for it. Liability is bond of necessity that exists between wrongdoer and the remedy for wrong. Penal liability arises when the following two conditions exist - 1. Actus Reus (Guilty Mind) 2. Act Done or Committed DOCTRINE OF MEN REA Guilty mind (Mens Rea): The fundamental principle of liability is that an act alone does not amount to a crime. It must be accompanied by a guilty mind. The Latin maxim "Actus non facit nisi mens sit rea" is a cardinal principle of Criminal Law. 1. The Doctrine of mens rea is based on the Latin maxim "actus non facit nisi men sit rea" 2. The maxim means wrongful act must be done with a guilty mind and then alone criminal liability is to arise. 3. The doctrine originated when criminal law dealt with undefined offences. Today, the offences have been precisely, strictly and accurately and statutorily defined. In that view of the matter the doctrine becomes irrelevant or unnecessary in relation to defined offences. 4. Although the doctrine is unnecessarily concerning the defined offences, yet every such definition incorporates the doctrine through some specific words or expressions forming part of the definition, saying it the other way. Doctrine of mens rea and the IPC 1. The doctrine has no general and direct application to the Indian Penal Code. Penal definitions are meticulous, precise and comprehensive under the code. Therefore, it is correct to say that there is no general application of the doctrine. 2. Every penal definition under the act states the following two things: a) The Act done by the accused person. b) The required state of mind while doing that act. 3

4 trictly for Internal Circulation - KCL 3. In view of the above, no room is left for application of general doctrine of mens rea. The definitions are almost self sufficient. If the act of the accused falls within the four walls of the definition it would constitute an offence. Exceptions to the doctrine of mens rea 1. tatutes creating strict liability constitute an exception to the doctrine of mens rea. The exclusion may be either express or by necessary implication. 2. trict liabilities are created in consideration of public health, public safety, public welfare, matters of food and drugs etc. 3. In the case of ri Niwas Mal Bairdia, 1947, PC the privy council held that - a) In case of absolute prohibition the question of means rea becomes irrelevant. b) Liability without mens rea may be imposed only in exceptional and limited classes of offences and these offence are comparatively of minor character. 4. In the case of Nathu Lal V/s tate of M.P., 1966, c the Hon'ble upreme Court held that. a. Mens rea is an essential ingredient of an offence, but a legislature may enact a law and thereby excuse the requirement of mens rea regarding an offence or a class of offences. b. Unless mens rea has been excluded expressly or impliedly, every penal provision has to be construed in conformity to the doctrine of mens rea rather than against it. c. Merely because a statute is directed to social welfare it cannot be decisively presumed that requirement of mens rea has been done away with (no conclusive presumption). d. In some cases, exclusion of mens rea may be presumed. uch a presumption can be raised where this is absolutely clear from the statute that the subject of statute would otherwise be defeated. 5. There is yet another reason for exclusion of mens rea in cases of absolute or strict liability. trict liability may be imposed where it is difficult to prove mens rea. DIFFERENCE BETWEEN TORT, CRIME AND CONTRACT The wrongs which are completely less serious are considered to be private wrongs and have been labelled as civil wrongs whereas more serious wrongs, have been considered to be public wrongs and are known as crimes. According to Blackstone: Wrongs are divisible into two sorts or species - private wrongs and public wrongs. The former are the infringement or deprivation of private or civil rights belonging to individuals and latter are breach and violation of public rights or duties, which affect the whole community. 1) ince tort is considered to be a private wrong the injured party himself has to file a suit as a plaintiff. If at any stage the injured party likes he may agree to a compromise with the tort feasor and withdraw the 4

5 trictly for Internal Circulation - KCL suit filed by him. 2) In the case of crime, on the other hand, even though the immediate victim is an individual the criminal wrong is considered be to a public wrong and criminal proceedings are therefore brought by the state and not by the injured party. Moreover, in certain exceptional cases law does not permit a settlement in the criminal case between the wrongdoer and the aggrieved party. 3) In the case of tort the ends of justice are met by awarding compensation to the injured party. In the case of crime the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to make good the loss suffered by him. The punishment under the criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing further wrongs. metimes, the same set of facts may constitute both a tort and a crime. The civil and criminal -emedies in such a case are not alternative but they are concurrent. The wrongdoer may be required to ay compensation under the law of torts; he may also be liable under criminal law. For example, if A digs a ditch on road resulting in inconvenience to public at large A has committed the offence of public isance under section 268 IPC. If X, a passerby, falls into that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A will be punished under criminal law for the offence of public nuisances, he will also be liable to compensate X under torts. Object of Passing Act: The main purpose of passing this Act was to protect society from those people. ho either for their benefit do those activities which directly or indirectly affect people at large and to prevent them. o it became necessary to pass this code. Title and extent of operation of the code: ection- 1. ection 1 provides-"this Act shall be called the Indian Penal Code, and shall extend to the whole of India except the state of Jammu & Kashmir." 2. ection 18 of IPC defines India-"India means the territory of India, excluding the state of J&K." 3. Article 1 of the Constitution of India declares-"india shall be a union of states." 4. Thus the state of J&K is part of political India but it is not India for the purposes of IPC Fazal AIi, C.J., as he then was, held that exclusion of a territory postulates the existence of a territory itself; tate of Jammu and Kashmir cannot be taken as a foreign territory. 6. Indian maritime area or the continental shelf is included in the territory of India. Indian maritime area extends to 12 nautical miles measured from the base line. 7. Any person (irrespective of his citizenship) is subject to IPC as soon as he entered the Indian Territory. Territorial Operation of the Code 1. 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. Every person within territory of India- Intra territorial operation (ection.2) 5

6 trictly for Internal Circulation - KCL Indian Territory territory Continental shelf. ection.2 Intr Territorial Operation Every person (Irrespective) of Citizenship Within territory of India Guilty Act Omission A IPC 2. Thus, section 2 provides for territorial operation of the code. 3. The word person has been defined in ec.11 IPC The word 'person' includes any company or association or body of persons, whether incorporated or not. Cases 4. ection 11 of I PC defines the word person widely and inclusively. However, it conveys natural persons alone. Therefore, as a general rule it conveys only natural persons and not a company or corporation. 5. In some cases a company or association or corporation may be liable under this code A company or corporation may be liable for filing fake income tax returns. 2. A Pakistani citizen while staying at Karachi made false representation to a complainant at Bombay through letters for supply of rice. He was arrested while he was in England and brought to Bombay. The Indian upreme Court upheld the order and convicted him u/ 420 IPC3. 3. Following are not included in the words 'every person' : a) President of India A Under Article 361 of the constitution of India. b) Governors of states c) Foreign overeign, Ambassadors Warships d) Enemies Alien (dealt in accordance with martial law) if commit an offence, be tried Under IPC. e) Foreign troops Extra territorial operation of the code: ec. 3 & ection-3 provides that an act which, would have constituted offence, if committed in India, may be an offence if committed beyond India. That would be so if any Indian law provides for that. 2. ection-3 refers to following laws: a) The extradition Act, 1962, (matters covered therein) b) ec. 187 & 188 Cr P.C. (matters covered therein) 3. ection-4 provides that the Act shall apply to following also: a) Act or omission by the Indian Citizens outside India. 6

7 trictly for Internal Circulation - KCL b) Offence committed by any person on any ship or aircraft registered in India.. 4. If an Indian citizen has committed a crime outside India, his act is punishable under IPC. The act 4 committed by him was not an offence at the place of commission. Held: That he can be tried and punished, in India. 5. The accused hailed from Multan. On partition he became a Pakistani citizen. He committed an offence in Pakistan. He came to India and acquired Indian citizenship. The question was whether he was triable in India for an offence committed by him in Pakistan as a Pakistani citizen. He cannot be 5 tried under IPC as at the time of commission of offence he was not Indian citizens. Certain Laws not to be affected by the code: ection-5 The Act shall not affect the provisions of any Act- a) Which makes it punishable for deserting or committing mutiny. b) The Act does not affect any special or local laws. c) Laws punishing mutiny or desertion by officers, sailors, soldiers, airmen in the service of Govt. of India are not affected by IPC. GENERAL EXPLANATION (ECTION 1 TO 52A) The Principle of Common Intention: ection 34 of IPC is related with doctrine of common intention. ection 34 - Acts done by several persons in Furtherance of Common Intention: "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." From the analysis of ec. 34 following essentials are made clear: 1. There must be two or more persons. 2. They must have a common intention. 3. Their common intention must have been furthered. If the above conditions are satisfied, each of the accused person would be liable for the resulted Criminal Act as if it were done by him alone. Common Intention 1) Common intention means following: a) Concerted action. b) Knowledge of each other's intention and sharing thereof. c) Prior meeting of minds. 2) Common intention is essential ingredient of ec. 34. Common Intention must not be confused with 7

8 trictly for Internal Circulation - KCL same or similar intention. 3) Presence of common intention is a question of facts and circumstances. 4) Common intention must be strictly proved. Courts cannot infer common intention readily. Furtherance of Common Intention 1) Presence of common intention is not enough. Its furtherance must also be proved. 2) Furtherance suggests participation or performance of some role. It was held that in a planned murder, one of the persons played the role of keeping of people from coming to the rescue of deceased. He and others were held guilty of murder u/s 302 read with ection ) It is not necessary that the roles should be same. Acts of the accused persons may differ. 4) Word 'Furtherance' enlarges the scope of ec. 34. The accused persons would be liable for a criminal act done in furtherance of common intention though it is different from what was commonly intended. 5) Where one of the accused persons develops an independent intention, the act done in furtherance thereof shall be his individual act and other co-accused persons would not be liable. 6) In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal act' used in ection 34 which means the unity of criminal behaviour which results in some thing for which an individual would be punishable if it were all done by himself alone in an offence. Even if the appealant did nothing as he stood outside the door it is to be remembered that in crimes as in other things "they also serve who only stand and wait." 7) In the case of Mehboob hah vs. Emperor AIR 1945 PC 118: Common intention implies a pre arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group. Common Intention Must Precede the Criminal Act 1. Common intention must precede the criminal Act; the time interval between them may be narrow or 7 wide. In the case of Ram Chander vs. tate of Rajasthan 1970 Cr.L.J. 653: It is held that there need not be a long interval of time between the formation of the common intention and the doing of the Act. 2. Common intention may develop even on the spur of moment. Difference between Common intention, same or similar intention 8 9 1) In Mehboob hah case, it was held that common intention and same intention are different. The difference or distinction may be few but it is real and substantial. 2) ec. 34 requires common intention. Concerted Action is the essence of the term. In case of same or similar intention there is no concerted action. Framing of Charge U/s 34 is not necessary 8

9 trictly for Internal Circulation - KCL 1) ec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides for a rule of evidence. 2) ince ec. 34 does not create any substantive offence no charge is required to be framed U/s 34. The Principle of Common Object (ection 149 IPC): Every member of an unlawful assembly is guilty of offence committed in prosecution of common ec. 149 provides: "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 to 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. Ingredients: The following are the essentials of common object: a) There must be an unlawful assembly. b) Any of the members of the unlawful assembly must have committed an offence. c) Offence must have been committed in prosecution of common object. (It includes the offence the likelihood of the commission of which was known to the members) If the above requirements are satisfied all the members of the unlawful assembly would be liable for the offence provided they were members at the time of commission of offence. Unlawful Assembly (ection 141): According to ection 149 IPC- An assembly of five or more persons is designated as 'Unlawful Assembly', if the common object of the persons composing that assembly is: First - To overawe by criminal force, or show of criminal force, the Union or any tate 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 econd - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or by 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 Fifth - By means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an 9

10 trictly for Internal Circulation - KCL unlawful assembly. Distinction between Common Intention and Common Object (ec. 34 & sec, 149) 1. ec. 34 does not create any substantive ec. 149 creates a substantive offence. It only provides for a rule of evidence.offence. 2. Common object must be proved to attract ec. Common intention is necessary to Common intention means concerted action or attract ec ; common Prior meeting of mind of knowledge and sharing of each other's intention. 3. ec. 34 does not require any unlawful assembly. Unlawful assembly is a condition President for Application of ec ec.34 requires participation or performance ec. 149 does not require of some roles by accused of common intention. Participation by all accused persons. This ec. imposes liability on persons who are members of unlawful assembly at 5. Framing of charge is not necessary as it Framing of charge is necessary as it contemplates no offence. contemplates a substantive offence. Difference between ection 34 & ection 149 was laid down in Barendra Kumar Ghosh v Emperor 52 IA 40 (PC imilarity: Both are examples of constructive criminal liability. Cooperation by Doing One of everal Acts Constituting an Offence ection-37 ection 37 The accused must have cooperated in the commission of the offence by doing any of those acts. The accused must have done that act either singly or jointly. If the above conditions are satisfied the accused shall be liable for the commission of that offence. Illustration - 'A' is a jailor. T is a prisoner under his charge. 'A', intends to kill 'Z'. 'A', commits illegal omissions in supplying food to T. 'Z' is much reduced in strength. However the starvation is not sufficient to cause death. 'A' is dismissed from service. 'B' is a new jailor. There is no collusion or cooperation between 'B' & 'A'. 'B' too, commits illegal omissions in supplying food to T. 'B' knows that 'Z' may die. T dies of hunger. Determine the Cr. liabilities of 'A' & 'B'. 'A' is liable for attempt to murder while 'B' is guilty of murder. (as he has knowledge that Z could die). 10

11 trictly for Internal Circulation - KCL IMPORTANT QUETION Q.1. Q.2. Q.3. Q.4. Discuss the various definitions of crime and explain the essential elements of crime. Explain the doctrine of mensrea and its importance in I.P.C. Explain the maxim "Actus non facit mens sit rea". Whether Common intention is different from same intention. Discuss. Q.5. What is the difference between common intention and common object? Q.6. Q.7. Q.8. "Mistake of fact is defence but not the mistake of law". Explain the statement. Explain mens rea and its exception with illustration. Distinguish between Tort and Crime. 11