INTRODUCTION:

It was Lord Macaulay, as the President of the First Indian Law Commission, who prepared the
Indian Penal Code which was then called Macaulay's Penal Code. He prepared the Penal Code
based on the Criminal law of England, France and also the Livingstone's Code of Louisiana. The
Macaulay's Penal Code became the Indian Penal Code in the year 1860. Violation of rights which
were dangerous to the orderliness of the then society were chosen as offences under the Indian
Penal Code and proportionate punishments were prescribed to prevent recurrence of such offences.

MALA IN SE AND MALA PROHIBITA:

In criminal law, crimes are categorized as either mala in se or mala prohibita.

1. MALA IN SE:

Mala in se is a Latin term meaning 'wrong or evil in itself. It is a term used to describe something
that is inherently immoral, regardless of whether it is defined by law as illegal. It is a term used to
describe something that is inherently illegal/immoral. It is illegal from the nature of the crime, i.e.,
inherently evil without any fact of its being noticed or punished. These are usually common law
crimes or those dangerous to life or limb. Such crimes are "naturally evil as adjudged by the sense
of a civilized community".

For e.g., Murder, rape, theft, fraud, etc. The offences at common law are generally mala in se.

2. MALA PROHIBITA:

Mala prohibita is not naturally an evil. It becomes so, because it has been forbidden by a statute.
For e.g.. Playing games which were legal, becomes illegal as a result of enactment of a statute
forbidding such games. In other words, it is an offence which is wrong, only because a statute
makes it so. It is a term which describes 'conduct that is specifically forbidden by laws'. Since these
acts are prohibited by law, they have become unlawful. "Public welfare offences" are a subset of
malum prohibitum offences as they are typically regulatory in nature. These offences do not result
in direct or immediate injury to person or property but merely create the danger or probability of
future injuries to person or property which the law seeks to minimize

The examples of mala prohibita are parking violations, copyright violations, violation of certain
licensing rules like liquor shop without license, stamp selling without licence, etc.
DEFINITION OF CRIME:

The legal meaning of crime is an act or punishable by law. Crime is an act which is forbidden by
law and revolting to the moral sentiments of the society. omission

1. SIR WILLIAM BLACKSTONE:

Crime is a violation of the public right and duties due to the whole community, considered as a
community.

2. STEPHEN:

A crime is an act or omission in respect of which legal punishment may be inflicted on the person
who is in default, either by acting or omitting to act.

3. AUSTIN:

A wrong which is pursued at the discretion of the injured party and his representatives is a civil
injury. A wrong which is pursued by the Sovereign or his subordinate is a crime.

4. KENNY:

Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person,
but is remissible by Crown alone, if remissible at all.

Criminal law includes the definition, the prevention, the investigation, the prosecution and the
punishment of crimes. It lays down the offence, proof, procedure and punishment.

DIFFERENCE BETWEEN TORTS AND CRIMES:

1. Both crimes and torts directly affect the community. They overlap each other and many crimes
include torts (civil injuries) within them. However, some torts do not amount to crimes and
similarly some crimes do not include torts. For e.g.: Tortious conspiracy, conversion, malicious
prosecution, nervous shock, private nuisance, passing off, slander of goods, etc., are merely torts.
But assault, battery (criminal force), false imprisonment (wrongful confinement), deceit
(cheating), defamation, negligence, trespass, etc., are both crimes and torts, but offences like
forgery, perjury, bigamy, culpable homicide, rape, etc., are only crimes and not torts.

2. Crime is a criminal wrong against society while tort is a civil wrong arising from a breach of
duty to a particular individual fixed by the law.

3. Regarding crime, the presence of Mens Real must be proved against the offender for punishing
him, while in tort, there is no such proof necessary against the defendant for claiming
compensation.

4. The accused in a criminal case is given the benefit of doubt, though he may be the offender, but
in the case of tort, the defendant is not entitled to such benefit of doubt.

5. In case of tort, the parties are allowed to compromise in all cases, while in crimes, the offences
can be compounded only in certain cases.

6. Crime is not generally a pardonable offence. It is pardoned under certain circumstances by the
Sovereign power only, but in tort only the plaintiff can release the defendant by withdrawing his
claim or compromising with him.

7. Crimes are tried is Criminal Courts while torts are tried in Civil Courts.

8. In criminal cases, the 'onus propandi' (burden of proof) is always on the prosecution, whereas
in torts, it shifts from plaintiff to defendant and vice versa depending on the nature of evidence.

9. The sanction for crime is punishment, whereas the remedy for tort is damages (compensation in
terms of money)

10.State through Police generally initiates action in crimes, but in torts, private party files the suit
for remedy.

The important differences between torts and crimes can be tabulated as under:

TORTS CRIMES
1. Civil wrong. 1. Criminal offence

2. Private person takes action. 2. State or Police take action.

3. Compensation is the remedy. 3. Punishment is by way of fine,

imprisonment, etc.

4. Civil Court hears the case. 4. Criminal Court hears the case.

5. No legislation for it, but only a Common law or Judgement

law Case law or governs the determination of compensation.

5. There is an Act called the Indian Penal Code (I.P.C), and other criminal
legislations.

6. In case of death of a tort feasor, his legal representatives

can be sued (except in defamation, assault, etc.) 6. Death of an offender puts an end to
prosecution

7. Limitation is a bar to an action in tort.

7. Generally there is no bar of limitation to a

prosecution for a crime except in certain cases as per Sec. 468 of Cr.P.C

RELATIONSHIP BETWEEN CRIME AND MORALITY:

In olden days, crime and morality were treated as coextensive but in the present day, crimes are
not always based on morality. The modern statutes have created many offences, which do not carry
with them any moral stigma. For e.g., Violations of traffic laws.
Moral lapse like avarice, ingratitude etc., are not punishable under the Law, as they are not treated
as crimes. A Crime is said to be committed only when an overt act (open and not secret) causing
physical or mental injury is perpetrated. Thus, crime and morality do not always go together. Some
are conflicting and some exist independently of each other.

F. PRESUMPTIONS IN CRIMINAL LAW:

In criminal cases, the presumption of law is that the accused is always innocent. Hence, the burden
of proof of every fact essential to prove the charge against the accused lies on the prosecution. It
is necessary that the evidence of the prosecution must be such that it proves the guilt of the accused
beyond reasonable doubts. As in the civil case, the evidence against the guilt must not be merely
a balance of probabilities, but must be beyond all shadows of reasonable doubts.

The rule is that it is better that several guilty persons escape, but one innocent person should not
suffer by miscarriage of justice.

G. ELEMENTS OF CRIME (ACTUS REUS AND MENS REA):

To constitute a crime, two elements are necessary and they are:

1. Physical element or Actus Reus.

2. Mental element or Mens Rea.

The fundamental principles of penal liability is based on the Latin maxim "Actus non facit reum
nisi mens sit rea". It means that an act does not become a crime unless done with a guilty mind.
So, the guilty mind and the act must concur to constitute a crime. Both the Actus Reus and Mens
rea are essential to constitute a crime.

Actus Reus includes:

i. Human action, either positive or negative (conduct of human being)

ii. Circumstances at the time of commission of crime as specified by law.

iii. The result of the conduct under such circumstances

Mens Rea means:

i. The conduct of the human being must be voluntary.

ii. The result of the conduct must be foreseen.

Brend v Wood: üÿ[1946] 175 LT 306:In this case, the court discussed the need to assume the
requirement of mens rea to constitute an offence: At common law, there must always be mens rea
to constitute a crime. If a person shows that he has acted without mens rea, then it is a defence to
a criminal prosecution.

There are statutes and regulations which create offences and make people responsible before
criminal Courts even though there is an absence of mens rea. Unless a statute, either clearly or by
necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find
a man guilty of an offence unless he has a guilty mind.'

1. ACTUS REUS

The term 'Actus' means a deed, a physical result of conduct. It is defined as "result of human
conduct as the Law seeks to prevent".

For e.g.: In the case of murder the conduct of the murderer is brought out by the victim's death.
Here the conduct is 'Actus Reus'.

The conduct of the offender is expressed in three ways:

i. A certain willful movement or omission.

ii. Certain surrounding circumstances including past acts.

iii. Certain consequences.

Act is a conscious movement. It results from the operation of will. The will may be by thinking
and working out by mind.

It may also be expressed by way of working out a problem on a paper. The former is called internal
act and the latter is called external act.
I. ELEMENTS OF ACT:

a. Origin

b. Circumstances

c. Consequences

Origin:

If a person commits an act, he has to think of it and do some physical activity. For e.g.: If 'A' wants
to shoot at 'B', A must think of it and then raise his hand, apply his fingers on the trigger and pull
it.

Circumstances:

Circumstances are the facts. The facts may be follows for the above example: as

1. The rifle must be already loaded.

2. "B" must be in the line of trigger point.

Consequences:

Consequences are the outcome (result) of the origin of circumstances.

In the above example, the fall of the trigger, the explosion of the bullet, the penetration of the bullet
and B's death constitute the consequences of the act. It is not the origin that completes the act as
illegalbut it is only the circumstances which make the actnillegal or an offence.

II. CHARACTERISTICS OF 'ACT':

a. An act is an event subject to the control of will power For e.g.: 'A' falling from a tower or
building is a event whereas 'A' jumping from a tower or building is an act. An act may include
omission also. For e.g.: A parent can be held liable for the murder of his child by starvation.

b. A man is liable only for such acts, the consequences of which is foreseen by him.

c. If there are subsisting and intervening causes, the act is not punishable. For e.g: If a man shoots
a girl, but if she dies from fever, then the accused is not guilty of murder, because the death is not
due to the act of shooting.
d. Under certain circumstances, even without physical participation, a man's act is punishable. For
e.g.: A man in Delhi can be held liable for arranging the commission of a crime at Madras.

Thus, acts like abetment and conspiracy are punishable even though there is no physical
participation in the commission of the crime.

Causation:

Causation is the 'casual relationship between conduct and result'. It provides a means of connecting
the conduct with the actus reus (act), i.e., the resulting harm. Causation is only applicable where a
result has been achieved and if no result is achieved, then causation has no relevance in an offence.
Causation of an event by itself is not sufficient to create legal liability. The usual method of
establishing factual causation is the 'but for test'. It means - but for the accused's act, the injury
would not have occurred',

For e.g.: A shoots and injures B. The question But for A's act of shooting, would B have been
injured? If the answer is 'no', then it means that A has caused the injury to B.

The 'but for test' is a test of necessity. It means was it necessary for the accused's act to have
caused the injury to the victim.

Only if novus actus interveniens, ('a new intervening act), the chain of causation could be cut.
Thus, the intervention of another person in one main act may exempt the other from liability.
However, the intervention by the other must be substantial.

In the United States, causation is known as the doctrine of proximate cause and it is expressed as
a question of 'foreseeability".It means that an accused is liable for the foreseeable and not the
unforeseeable consequences of his act.

For e.g.: It is foreseeable that if A shoots B in sea water and if B is immobilized, then he may be
drowned in a rising tide rather than from the gunshot wound or blood loss. Here, A can. foresee
that if his act of shooting may make him immobilized and that he may be drowned in a rising tide.

2. MENS REA

The second essential ingredient in the crime is Mens Rea - i.e., guilty mind, an evil intention or a
knowledge of the wrongful act, intentional ommission to do a lawful act, intentional recklessness
in doing an act. There must be a mind at fault before there can be a crime. It is merely the intention
to commit an act prohibited by law.

Khandu's case:

The accused's friends entered into a house and committed burglary. The accused was standing and
watching from outside. The accused was punishable for house burglary (robbery in IPC), as he had
mens rea to commit the offence, though he had not participated in the act.

Glanville Williams defines Mens Rea as the mental element necessary for the particular crime and
this intention may be to do an act or a recklessness from doing a lawful act.

I. CHARACTERISTICS OF MENS REA:

a. Mens rea includes both intention to do a positive act and reckless by abstaining from doing an
act.

b. Intention is different from knowledge: Intention is the desire to do an act. Knowledge means
personal information of the person doing the act. Intention is punishable, whereas knowledge is
not always. A doctor performing an operation may have the knowledge of the death of the patient
but he has no intention to cause his death. Here the doctor is not punishable.

c. Intention is different from motive: Intention is the immediate result, whereas motive is the
ulterior result of the act.

For e.g.: A commits theft of some biscuits to satisfy his hunger. Here the motive is for a good
purpose of satisfying his hunger but his immediate act of theft being with bad intention, is
punishable.

Thus, if a man follows illegal means to achieve a good and legal purpose, even then he is
punishable. Motive has emotions like love, fear, hatred, etc., whereas intention has no emotion.

II. MENS REA IN ENGLISH LAW:

Under the common Law of England, the Court held an individual liable only if his guilty act was
accompanied by a guilty mind. This principle is known by the latin maxim "Actus non facit reum,
nisi mens sit rea".It means that the act itself does not constitute guilt unless done with a guilty
mind. The element of Mens Rea' in English Law is indicated by the use of the words like intention,
knowledge, negligence, recklessness, dishonestly and fraudulently. Thus the requirement of mens
rea for assessing the criminal liability has changed the objective standard of criminality to that of
subjective.

APPLICATION OF MENS REA IN I.P.C.:

The doctrine of Mens rea is applicable to all acts which are declared offences in the I.P.C.
However, there are certain exceptions to the rule, where the offences are public welfare offences.

EXCEPTION TO THE DOCTRINE OF MENS REA:

a. Vicarious Liability: (Master's liability for servant's act)

Usually a man is held liable for his own acts only. But under the principle of vicarious liability, he
is liable for the acts of others also. Thus an individual who has not done the offensive act is held
responsible for the result of an act done by the offender. For majority of offences under the I.P.C.,
the principle of vicarious liability does not apply. However, in the following cases, the principle
of Vicarious liability is applied:

1. Sec. 154: The landowner is responsible for the offences of rioting, if it is committed or has been
committed on his land and if he does not report the matter to the Police Authorities.

2. Sec. 155: Provides for cases where rioting is committed for the benefit of the land owner.

3. Sec. 156: Agent or Managers are responsible for rioting in the absence of their Masters.

4. Statutory liability: A statute may impose criminal liability upon the master as regards the acts
or omissions of his servants. In all licence cases, the master is generally held responsible.

5. Public nuisance: If public nuisance is caused by acts of the servants while carrying on the works
of the master, the master is liable for the offence.

6. Neglect of duty: If a master entrusts a work to unskillful labourers which involves dangerous
operations, then for any injury caused to third persons by the negligence of such labourer, the
master is criminally liable.
Strict Liability:

Crimes of strict liability are those in which the necessity of Mens rea is wholly excluded. The
person is held responsible for his act even though he has no intention to do the act and there is no
negligence on his part.

The following are the instances:

Offence against the State like waging war against the Government of India (Sec. 121)

Sedition (Sec. 124-A)

Assaulting high officers (Sec. 125)

Counterfeiting Indian Coin (Sec. 232)

Abduction (Sec. 362)

Kidnapping (Sec. 359)

Public welfare offences and Mens rea:

As under the doctrine of strict liability, mens rea does not apply to public welfare offences i.e.,
offences under the Food Adulteration Act, Essential Commodities Act, Foreign Exchange Act,
Customs Act, etc.

Further the public welfare offences include socio economic offences relating to food, drugs,
weights and measures, hoarding and black marketing, licensing, revenue, environment pollution,
etc., where mens rea is not applicable.

C. Cases of absence of Mens Rea:

Special circumstances relieve the offender from criminal liability. They favour infants, lunatics
and persons under the influence of delirium. In all these cases, the element of mens rea is absent.

Accident (Sec. 80)

Necessity (Sec. 81)

Infancy (Sec. 82 & 83)

Intoxication against will (Sec. 85)

Hobbes v Winchester Corporation (1910):

A butcher was convicted of selling unfit meat. It is immaterial whether he had knowledge or not
regarding the fitness of meat for human consumption. On grounds of public policy, the
presumption of necessity of mens rea for commission of any offence is not applicable here. Here
the principle of strict liability is applicable.

Limitation for prosecution of offences:

Previously, there was no limitation to prosecute a person for an offence and hence criminal
proceedings were initiated even after the expiry of long periods after the commission of the
offence. But now Criminal Procedure Code provides limitation period for taking cognizance of
certain offences. Thus, as of now, after certain period, these offences cannot be punishable.

As per Sec. 468 of the Cr.P.C, 1973, the period of limitation is -

a. six months, if the offence is punishable with fine only,

b. one year, if the offence is punishable with imprisonment not exceeding one year, c. three years,
if the offence is punishable with imprisonment exceeding one year, but not exceeding three years.

PLACE OF CRIMINAL LAW IN CRIMINAL SCIENCE:

The object of criminal law is to regulate the conduct of individuals, so that they do not act
prejudicial of the well being of an orderly society. In case, an individual commits act/s which the
society consider that they are evil/immoral/opposed to the orderliness of the society, then such
individual is subject to prescribed punishments depending on the gravity of his act/s.

In this context, criminal law is the basis for developing the criminal science. While criminal
science is a study to curb and prevent the occurrence of the crimes in the society and also reform
the criminals, the out come or product of the criminal science is the criminal law of a country.
Criminal law describes the different types of crimes and prescribes punishments for each crime
whereas criminal science make study not only the criminal law, but also the behavior of the
criminals and the ways and means of eradicating the crimes from the society. The study of criminal
science is now termed as 'criminology where under criminal law is a part of it. Thus criminal law
is a 'species' while the criminal science (criminology) is a 'genus' and are supplementary to one
another.

PARTIES TO CRIME:

There are four possible parties to a crime. They are:

1. Principal in the I degree

2. Principal in the II degree

3. Accessory before the fact

4. Accessory after the fact

1. PRINCIPAL IN THE I DEGREE:

The person who actually commits/committed or participates in the commission of the crime is
called the Principal in the I degree. He is the actual offender. He is awarded the prescribed
punishment as per the Criminal law.

2. PRINCIPAL IN THE II DEGREE:

He is a party who aids, assists, encourages or instigates the Principal in the I degree during the
commission of the crime. He may or may not be physically present at the location of the crime,
but indirectly instigates, encourages or aids in the commission of the offence. He is otherwise
called 'Accomplice'. Principal in the II degree is punished to the same degree as the Principal in
the I degree.

JURISDICTION

INTRODUCTION:

Jurisdiction is the extent or limit within which a State can exercise its legal authority. Generally, a
State can exercise jurisdiction over any person within its territory and sometimes, beyond its
territorial limits. There are two types of personal jurisdiction.

PERSONAL JURISDICTION:
1. Territorial jurisdiction (Sec. 2)

2. Extra territorial jurisdiction (Sec. 3)

According to Sec. 2 of the I.P.C., every person made liable to punishment without distinction of
nation, rank or creed. So, all persons, whether rich or poor, c. On a high or low in society, are
punishable.

TERRITORIAL JURISDICTION:

According to Sec. 1 of I.P.C., the territorial jurisdiction extends all over India, except the State of
Jammu and Kashmir. The territory of India includes the territories, and other territories which may
be acquired. So every person who is within the Indian territory is punishable, whether he is an
Indian or a foreigner. The citizenship or nationality of the person is immaterial.

State of Maharashtra Vs. M.H. George:

A foreigner entered into India and after committing an offence in India. He took the plea of
ignorance of Indian Law, as he was not aware of the criminal nature. in which of the act committed
by him. The Supreme Court held that a foreigner who enters India, impliedly accepts the allegiance
to Indian laws and hence he is as much liable for committing an person offence as a resident is. So
a foreigner cannot take the plea of ignorance of the Indian Law.

The I.P.C. applies to any offence committed:

a. Within the territory as defined in Article 1 (3) of the Constitution

b. Within the territorial waters of India, and

C. On any ship or aircraft either owned by India or registered in India.

EXEMPTIONS (PERSONS EXEMPTED FROM OPERATION OF IPC:

The following persons are exempted from jurisdiction

1. The President of India or the Governor of a State

2. The Chief Justice and other Judges of the Supreme Court and the High Courts.

3. Foreign Sovereign and Ambassadors.

4. Warships of Foreign states.

5. Alien enemies.

6. Former rulers of the State.

1. The President of India or the Governor of a State:

The immunity given to them is based on the principle "the King can do no wrong". The legal
basis is that the Head of a State is immune from punishment because no Court can have jurisdiction
over him, as he himself is the superior trial authority.

2. The Chief Justice and other Judges of the Supreme Court and the High Courts:

They enjoy immunity from criminal trials before these ordinary criminal courts in order to
safeguard the independence of the judiciary. However, this immunity is a qualified one and their
liability tried and determined by a special procedure. can be

3. Foreign Sovereigns and Ambassadors:

and Foreign Sovereigns, the Ambassadors Diplomatic agents with their families, Secretaries
Messengers and servants, enjoy immunity. They cannot be subject to the law of another country.
As the Ambassadors and foreign diplomatic agents are admitted upon faith, they are supposed to
be living in their own country. The privileges and immunities are available to the United Nations,
its representatives, other international representatives or organisations and their representatives.

4. Warships of Foreign States:

Warships of foreign states are exempted from the jurisdiction of the State within whose territorial
waters they are.

5. Alien Enemies:

In respect of acts of war, alien enemies cannot be tried by the local criminal courts. But in respect
of other offences, they are triable.

6. Former Rulers of State:

They were exempted from jurisdiction by the old Criminal Procedure Code of 1898. But those
privileges have been abrogated in 1971 by the Abolition of Privy Purses and Privileges Act.
II. MARITIME TERRITORY OF THE I.P.C:

For the purpose of jurisdiction, the land, internal waters such as rivers, lakes and canals are
included. The sea was not under the territorial jurisdiction. But now by enacting the "Territorial
waters Jurisdiction Act" the jurisdiction of I.P.C extends to seven miles into the sea.

R Vs. Keyn (Franconia case): The German ship Franconia, while passing within three miles of
the shore of England ran into a British ship and caused the death of a passenger, which amounted
to the offence of manslaughter, Mr. Keyn, the captain of the ship, was tried for the offence of
manslaughter. As a statutory enactment was absent, the English Criminal Court had no power to
try such an offence. Hence, the English parliament enacted the "Territorial Waters Jurisdiction Act
of 1878", which extended the jurisdiction of English Courts to three miles into sea from the shore.
Similarly, the air space excluding outer space above a country is subject to its control and a country
can prohibit the disturbance of its air space by wireless communications from foreign stations.

EXTRA TERRITORIAL JURISDICTION:

The word 'offence' includes every act which is punishable under the Indian Penal Code, though
committed outside India. Thus Sec. 3 and 4 extend the jurisdiction of Indian Courts beyond the
territorial limit of India. Extra territorial jurisdiction may be exercised by the Indian Courts for
offences committed beyond the territories of India either on land or high seas. In the following
cases, the jurisdiction of Indian Courts extend beyond the territorial limits of India.

CITIZEN OF INDIA COMMITTING OFFENCES OUTSIDE INDIA:

If a citizen of India commits an offence outside India, then he is punishable under the I.P.C. The
term 'citizen of India' means every person who had his domicile in the territory of India and who
was born in the territory of India, or either of whose parents was born in the territory of India or
who has been ordinarily resident in the territory of India for not less than five years immediately
preceding the commencement of the Indian Constitution. The accused must be a citizen of India
at time of committing the offence and not an individual who has become a citizen subsequently.

Illustration:

A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder
in any place in India in which he may be found.
NON CITIZEN OF INDIA COMMITTING OFFENCES IN INDIA:

Every person who is within the Indian territory is punishable, whether he is an Indian or a
foreigner. The citizenship or nationality of the person is immaterial.

State of Maharashtra Vs. M.H. George: The Supreme Court held that a foreigner who enters
India, impliedly accepts the allegiance to Indian laws and hence he is liable for committing an
offence.

NON CITIZEN OF INDIA COMMITTING OFFENCES OUTSIDE INDIA:

If a person is not an Indian citizen at the time of committing the offence, he cannot be tried in India
for the offence/s committed outside and beyond India. A person who was not an Indian citizen at
the time of commission of the offence, but acquired Indian citizenship subsequently cannot also
be tried by Indian Courts, as jurisdiction cannot be conferred retrospectively.

R Vs. Mobarik All, (1957) 61 Bom LR 58, SC: A foreigner who commits an offence within India
is guilty and can be punished even without his physical presence in India at the time of commission
of the offence.

OFFENCES COMMITTED BY INDIAN CITIZEN PARTLY IN INDIA AND PARTLY

OUTSIDE INDIA:

If an act constituting an offence is done by an Indian citizen partly in India and partly outside India,
then I.P.C has jurisdiction to try the offence, if the two acts together constitute an offence under
the Code.

EXTRADITION:

Extradition is the surrender by one State to another State of a person to be tried or detained for
crimes of which he has been accused or convicted and which are in the Courts of such other State.
In India, the extradition justiciable procedure is governed by the Extradition Act, 1962.

OFFENCE IS COMMITTED IN ANY INDIAN SHIP OR AIRCRAFT:

If an offence is committed in any ship or aircraft registered in India, wherever it may be, then
Indian Courts have jurisdiction to try such offence.

OFFENCES COMMITTED ON HIGH SEAS ( ADMIRALITY JURISDICTION OF IPC)

The Jurisdiction to try offence committed on high seas in known as Admiralty Jurisdiction. High
seas are considered to be 'no man's territory'.The jurisdiction of a country over its ship the high
seas is based on the principle that the ship is a floating island belonging to the nation whose flag
she is flying. The Admiralty Jurisdiction extends over:

i offences committed on Indian ships.

ii. offences committed on foreign ships in Indian territorial waters.

iii. pirates.

Offences on Indian ships:

The Admiralty jurisdiction extends on Indian ships on the high seas and in rivers below the bridges,
where great ships go and the tide ebbs and flows. Indian ships at a place where the foreign
municipal authorities may have concurrent jurisdiction, are also under the Admiralty jurisdiction
of the I.P.C. Also all persons whether citizens of India or not on board the ship are covered by the
I.P.C. The ordinary Criminal Courts and Admiralty Courts have alternate jurisdiction over the sea
shore.

Offences on foreign ships:

territorial waters of India are also covered under the Offence committed on a foreign ship within
the Admiralty Jurisdiction of the I.P.C. In this case, the Indian courts and also the court of the
foreign country whose flag the ship is flying hav concurrent jurisdiction.

Piracy:

It means sailing on the seas for private. unauthorized use for committing robbery or actual violence
against persons. Pirates attack by sea is without any authority from any state.Piracy is of two kinds:

a. Piracy Jure Gentium.

b. Piracy by statute of the country

a. Piracy Jure Gentium:

It is an offence against all nations and every state has power to punish such on offence. Piracy jure
gentium is seizing or attempting to seize any ship by violence or taking away or attempting to take
away any of the goods by violence. Both actual robbery and attempt to commit robbery are piracy
jure gentium.

A pirate loses all claim to protection from any country. Even if subjects of the same State commit
robbery upon each other on the high seas, it is piracy. If subjects of different states commit robbery
on the high seas then it piracy if the respective states are in good relation. It is not piracy if the
states are in enmity with each other.

Piracy by statute of the country:

Certain acts which are treated as acts of piracy under International law are treated as piracy under
the laws of a country. Such acts are punishable by the Courts of that country.

EXCLUSION OF APPLICATION OF I.P.C:

In the following cases, the I.P.C is not applicable.

MARTIAL LAW:

The application of the I.P.C is temporarily suspended when martial law is in force and the
municipal law is suspended. However, after the Martial law is lifted, L.P.C. is applicable.

ACT OF STATE:

It is an act which is injurious to the person or property of any person who is not a citizen of India
at the time of its commission. The act is done by some representative of the Government or is
sanctioned by the Government robbery previously or subsequently ratified by the Government of
India. Remedy for an Act of State can be obtained only through diplomatic channels.

LAWS NOT AFFECTED BY THE I.P.C. (SPECIAL LAW AND LOCAL LAW):

The Indian Penal Code has no application to -

1. any Act for punishing mutiny and desertion by officers, soldiers, sailors or airmen in the
defence service of the Government of India.
2. Any specia or local law

An offence expressly made punishable by a special or local law is also generally punishable under
the IPC. However, if such special or local law expressly excludes the operation of the I.P.C, then
no prosecution under the Code is possible. Further, no person can be punished both under the I.P.C.
and the special law for the same offence.

PUBLIC SERVANT (Sec. 21)

The term 'public servant' means a person falling under any of the descriptions hereunder:

1. Every Commissioned Officer in the Military, Naval or Air Forces of India.

2. Every Judge including any person empowered by law to discharge any adjudicatory functions.

3. Every officer of a Court of Justice (including a Liquidator, Receiver or Commissioner) whose

duty is to investigate or report on any matter of law or fact, or to make, authenticate, or keep any
document, or to take charge or dispose of any property, or to execute any judicial process, or to
administer any oath, or to interpret, or to preserve order in the Court and every person specially
authorised by a Court of Justice to perform any of such duties.

4. Every juryman, assessor, or member of a panchayath assisting a Court of Justice or public

servant.

5. Every arbitrator or other person to whom any cause or matter has been referred for decision or
report by any Court of Justice.

6. Every person who is empowered to keep any person in confinement.

7. Every officer of the Government whose duty is to prevent offences, to give information of
offences, to bring offenders to justice, or to protect the public health, safety or convenience.

8. Every officer whose duty is to take receive, keep or expend any property on behalf of the
Government, or to make any survey, assessment or contract on behalf of the Government, or to
execute any revenue process. or to investigate, or to report, on any matter affecting the pecuniary
interests of the Government, or to make, authenticate or keep any document relating to the
pecuniary interests of the Government, or to prevent the infraction of any law for the protection of
the pecuniary interests of the Government.

9. Every officer whose duty is to take, receive, keep of expend. any property, to make any survey
of 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.

10. Every person who is empowered to prepare, publish, maintain or revise an electoral roll or to
conduct an election.

11. Every person -

a. in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government.

b. 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 Sec. 617 of the Companies Act,
1956.

Illustration:

A Municipal Commissioner is a public servant.

Explanation:

1. Persons falling under any of the above descriptions are public servants, whether appointed by
the Government or not.

2. Persons in the service and pay of Government, or exercising various public functions, are
included in the term public servant.

WRONGFUL GAIN:

It is a gain of property by unlawful means to which the person gaining is not legally entitled. The
term wrongful' means adversely affecting a person in some legal right. In wrongful gain, the
property of some person must be a loss to him or the owner must be kept out of such property.

For e.g.: If a new shirt is given for washing, but if it is used by the washerman for wearing, then
the depreciation is wrongful loss of the property to the owner and wrongful gain to the washerman.

Essentials:

1. There must be gain of certain property.

2. Such gain must be by unlawful means.

3. The person gaining must not be legally entitled to that property.

The word 'wrongful' means prejudicially affecting a party in some legal right and it must be
acquisition or retention with intention of appropriation.

Mahalingayya Muddaya Punjari Vs. State:

A postman retained the V.P. parcel by signing the postal receipts like the addressee. It was held
that the retention was a wrongful gain on the part of the postman.

WRONGFUL LOSS:

It is the loss by unlawful means of property to which the person losing it is legally entitled.

Essentials:

1. The loss of property must be caused by unlawful means.

2. The person losing must be legally entitled to such property or he must have some legal right in
that property.

Wrongful gain and wrongful loss is one of the essentials of the offence of theft.

For e.g.: If the movable goods from the house of a debtor is seized towards the satisfaction of a
debt, then it is wrongful loss to the house owner (because it is not the legal means of recovery of
debt).

Preonath Banerji Vs. State:

In a case, R was in debt to S the accused. The accused took away a cart and bullocks belonging to
R in his absence. As the accused caused wrongful gain to himself and wrongful loss to the owner
of property, he was held guilty of the offence of Theft.

DISHONESTLY AND FRAUDULENTLY(Sec. 24 & 25)

DISHONESTLY: (Sec. 24)

If any person does anything with the intention of causing wrongful gain to one person or wrongful
loss to another person, then he is said to do that thing 'dishonestly'. Dishonestly includes wrongful
gain to one person or wrongful loss to another person. Wrongful gain includes wrongful retention
of a property. Similarly, if a person is being kept out of the property or wrongfully deprived of the
property, then he is said to act dishonestly.

Essentials:

1. Some act must be done.

2. Such act must be done with an intention of causing wrongful loss to the owner.

Narendra Pratap Narain Singh Vs. State of U.P.:

The Court held that 'dishonestly' is an essential ingredient of the offence of theft.

FRAUDULENTLY: (Sec. 25)

A person is said to do a thing fraudulently if he does that thing with the intent to defraud but not
otherwise.

Essentials:

1. A person must do something.

2. It must be with intention to defraud.

The meaning of 'defraud' is to deprive a owner of his right by taking anything by deceiving him or
without his knowledge or consent. The expression 'defraud' includes two elements, namely 'deceit'
and 'injury' to the person 'deceived'. The meaning of injury is given in Sec. 44 IPC and it denotes
any harm whatever, illegally caused to any person in body, mind, reputation or property. Thus
injury may involve a non economic or non pecuniary loss. "Fraudulently" need not include actual
loss; it is enough if the accused has aimed at an advantage by deception. To prove the intention of
fraud, there need not be some person who has been defrauded.

For e.g: If a person forges the signature of a person who had no account in a bank, still he has
intention to defraud.

R Vs. Lolit Mohan Sarkar, (1894) 22 Cal 313:

The Calcutta High Court has laid down that if the intention is to conceal a fraudulent or dishonest
act which has been previously committed, it cannot be other than to commit fraud, and if the
intention is to commit fraud, the making of a false document with that intention will come within
the definition of forgery.

DIFFERENCE BETWEEN DISHONESTLY' AND 'FRAUDULENTLY':

1. Deceit is internal misrepresentation or concealment of fact which is an essential element of fraud

but not so for 'dishonestly'

2. Dishonesty has three essentials:

a. Intention

b. Employment of unlawful means.

c. Acquisition of property to which one has no right Fraud has only two essentials:

i. Deceit.

ii. Injury caused to person deceived or some other person in consequence.

3. There can be no dishonesty unless is property involved as the subject matter. But in deceit,
property may or may not be included as the subject matter.

4. Wrongful gain or wrongful loss of property is an essential element of 'dishonestly', but not so in
fraudulently.

Examples:

a. A snatches away by force, a fountain pen from B's pocket and says that he shall return it
only if B gives him some money. He retains the pen with intention of causing wrongful
loss to B. So, here the act is dishonest.

b. A puts counterfeit mark on an article with the intention to cause people to believe that it
was made by certain famous firm and thereby to cause them to purchase it under such
belief. It is a fraudulent act.

Here, as there is deceit and an injury to B, it is fraud. As there is intention to cause wrongful gain
and wrongful loss of property, employment of unlawful means and wrongful acquisition of
property, it is done dishonestly also. Thus there are cases which may be both fraudulent and
dishonest.

COUNTERFEIT(Sec. 28)

A person is said to 'counterfeit', who causes one thing to resemble another thing intending to
practise deception or knowing it to be likely that deception will be practised. 'Counterfeiting'
simply means causing to resemble another. The imitation need not be exact. one thing

Essentials:

1. Causing one thing to resemble another thing.

2. Intending by means of that resemblance to practise deception or knowing that deception may be
caused.

3. The thing' counterfeited may be a piece of metal and its preparation or manufacturing value is
immaterial. It may even be higher value than the actual value of the counterfeited thing.

4. If the resemblance of the counterfeited thing is likely to deceive a person, then it is presumed
that the person causing one thing to resemble another thing intends to practise deception.

The following are the offences of counterfeiting:

1. Counterfeiting coin.

2. Counterfeiting Indian coin.

3. Making or selling instrument for counterfeiting. Mere acts of preparation towards the offence
are punishable.

4. Possession of instrument for counterfeiting. 5. Abetting in India, the counterfeiting of coin out
of India.

6. Importing into or exporting from India any counterfeit coin.

7. Delivery of a counterfeit coin to person with the knowledge that it may be a counterfeit one.

8. Delivery of counterfeit coin as genuine.

9. Possession of counterfeit coin or Indian coin with the knowledge that it is counterfeit.

E. DOCUMENT (Sec. 29) AND ELECTRONIC RECORD (Sec. 29-A)

"Document" means any matter expressed or described upon any substance of letters, figures or
marks intended to be used as evidence of that matter. It is immaterial by what means or upon what
substance the letters, figures, etc, are formed or whether the evidence is intended for use in a Court
of Justice.

Examples of documents:

(i) Cheque upon a banker is a document (ii) A map or building plan intended to be used as evidence
is document (iii) A writing containing instructions is a document. Also words printed, a map or
plan, a caricature, etc., is a document (iv) A power of Attorney.

Electronic Record (Sec. 29-A)

Electronic Record' is defined under Sec.2 (1)(t) of Information Technology Act, 2000. "Electronic
record" means date, record or date generated, image or sound stored, received or sent in an
electronic form or micro film or computer generated micro fiche; An electronic record is a
document under Sec. 29 of I.P.C. Further making a false document under Sec.464 of 1.P.C.
includes making of a false electronic record.

VALUABLE SECURITY(Sec. 30)

It is a document of value or a document which creates or extinguishes legal right or purports to

create or extinguish them.

Essentials:

1. It is a document.

2. By that document, a legal right is created, extended, transferred, restricted, extinguished or

released.

3. It is a document by which a person acknowledges that he lies under a legal liability or has not a
legal right
Illustration:

A writes his own name on the back of a bill of exchange. The effect of this endorsement is to
transfer the right to the bill to any person who any become the lawful holder of it. Legal right
means an ascertainable claim enforceable before Courts and Administrative agencies. It is an
advantage or benefit conferred upon a person by a rule of law. A document suspending a person
from exercising powers exercisable by him by virtue of his office is a restriction of a legal right.
A document withdrawing a suspension is a valuable security.

E.g.: A proposal for insurance, a lottery ticket, a cinema ticket are examples of valuable security.
A deed of divorce is also a valuable security.

However, a copy of a valuable security is not a valuable security.

VOLUNTARILY(Sec. 39)

A person is said to do a thing voluntarily if he has reason to believe that it is likely to happen as a
natural result of the act done. Even if any offensive act is caused voluntarily for a good motive, it
is punishable because law is concerned only with the intention and not motive.

Illustration:

A sets fire to a house intending to commit robbery thereby causing death of a person in the house.
Though he does not intend to cause death by his act, because he knows that he is likely to cause
death by his act, he is said to cause death 'voluntarily'. If the effect is a probable consequence of
the means used by him, then he has caused it voluntarily. Here, he cannot contend that he did not
know or was not sure that the consequence would follow and he must answer for it just as if he
had intended to cause it.

BONA FIDE AND MALA FIDE

1. BONA FIDE:

The term bona fide' implies absence of all fraud or unfair dealing. It also means - good faith or
genuinely. In other words, it conveys the absence of intent to deceive. Bona fide is a term closely
related with things and actions in relation to mind or motive of a person. It also connotes good
faith which is suggestive of honesty of purpose.
Leena Gupta Vs. Institute of Medical Sciences, Banaras Hindu University Varanasi:

The attendance of a student in a college short, but there was a chance to make up the short fall of
the attendance. On these grounds, the student fell was re-admitted in the college and was treated
as a bonafide student.The Court held that though her attendance fell short, since her name was not
struck off from the roll of the university, she was treated a bona fide student of the college.

Union of India Vs. C. Rama Swamy:

There was a clerical error in recording of date of birth by mistake and oversight. The Court held
that it was a bond fide error and hence no action could be initiated against the charged employee.

MALA FIDE:

The opposite term for bonafide is mala fide. It denotes fraudulent intention or unfair dealing. It
imports a dishonest purpose or conscious doing of a wrong.

Bhupinder Singh Vs. State of Haryana:

The Supreme Court held that 'mala fide' is more dishonesty than a mistake of judgment and it is
synonymous with dishonesty.

GOOD FAITH (Sec. 52)

Good faith is defined in Sec. 52 of the I.P.C. It says "nothing is said to be done or believed in good
faith which is done or believed without due care and attention". According to Sec. 52, an act is
done in good faith only if it is done with due care and attention expected from a reasonable man.
So a person is said to act in good faith not only if he had a good intention but also if he had
exercised the necessary care and skill. According the definition of good faith in the Gen eral
Clauses Act, a thing shall be deemed to be done in good faith if it is in fact done honestly, whether
done negligently or not. But according to the Indian Penal Code, even if an act is done honestly, if
it is done negligently, it would not be deemed to have been done in good faith. Thus, 'good faith'
depends upon 3 factors:

1. The nature of the act done by the accused.

2. The magnitude and importance of the act done by the accused.

3. Due care and attention given in the situation by the accused.

Good faith as a defence:

As the elements of crime are guilty intention or knowledge, good faith is a valid defence in:

1. Mistake of fact under Sec. 76

2. Immunity of judicial officers under Sec.77

3. Immunity of ministerial or executive officers under Sec.78

4. Immunity of any other person usnder Sec.79

5. Defence of consent under Sec.92

6. Communication made in good faith under Sec. 93

7. Exceptions to murder under Sec. 300(exception 3) and

8. Wrongful restraint under Sec. 339

INTRODUCTION: COMMON INTENTION AND COMMON OBJECT

When an act punishable by law is committed jointly by two or more persons, all of them are
punishable for such act. It is because the act is done in furtherance of common intention.

ACT AND OMISSION:

Here, the term 'act' has to be explained - Sec. 33 of IPC reads -

The word 'act' denotes a series of acts as a single act the word 'omission' denotes a series of
omissions as a single omission. The The word 'act' not only means any particular, specific,
instantaneous act of a person but it also denotes a series of acts.

For e.g.: If a person gives several beatings to another, then he will not be punished for each beating
separately. All such beatings will be treated as one 'act" for the purpose of punishment.

ACT DONE IN FURTHERANCE OF COMMON INTENTION (Sec. 34):

furtherance of common intention, then each person is If a criminal act is done by several persons
in liable for the criminal act. It is considered as if the criminal act was done only by him. others
only assist him in doing it, they are all held liable, Even if one person does the criminal act, and as
they have acted with a common intention. This is known as "Constructive Criminality" It means
that all are responsible for the criminal to act, even if it is done by one or a few of them. It is
difficult t prove the part played by each of them in doing the act.

Moreover, the presence of others gives encouragement, support and protection to the person
actually committing the offence.Thus, every person engaged in the commission of a crime is held
liable by his participation in the criminal act, even if the particular act was not wholly performed
by the one or the other member of the group.

DOCTRINE OF JOINT LIABILITY:

Sec. 34 incorporates the principle of joint liability laid down in the case of Reg Vs. Cruse.

A police head constable along with other constables went to A's house to arrest him. On seeing the
police constables, B, C, D and others came out of the house and beat the police head constable and
drove him off along with his assistants. The Court held that each of the members of the group B,
C and D were equally liable for the beating even though only one of them actually gave the beating

ACT IN FURTHERANCE OF COMMON INTENTION:

The following are the essentials:

a. A criminal act must be done by several persons.

b. There should be a common intention

c. The act done must be in furtherance of the common intention i.e., there must be participation of
all in the commission of the act, in furtherance of the common intention.

Criminal act done by several persons:

As per Sec. 33, the term 'act' includes both single act and series of acts. Thus the term 'act' used
under Section 34 means and includes a series of acts, which are considered as a single act. Thus
the words 'when a criminal act is done by several persons' as mentioned in Section 34- equally
means 'when criminal acts are done by several persons'. As per this meaning, the acts committed
by different persons in a group in the criminal action may be different, but all must in one way or
the other participate and engage in the commission of the criminal offence.
For e.g.: One person in a group may only stand as a guard to prevent other persons coming to save
the victim. In a way he facilitates the execution of the common intention. So such a person also
commits an 'act' as much as his co-participants actually committing the crime.

Gopinath @Jhallar Vs. state of U.P. (CDJ SC 061): 2002

The Supreme Court held that even where the committed by the different confederates are when it
is proved that all of them participated and engaged themselves in furtherance of the common
intention which might be of a preconcerted pre-arranged plan or which is manifested or developed
at the spur of the moment in the course of the commission of the offence, then it is an act in
furtherance of common intention under Sec. 34 I.P.C.

In the case of an offence involving physical violence, to bring it under the scope of Section 34, the
person who instigates or aids in the commission of the crime must be physically present at the
actual scene of the crime in order to facilitate the commission of offence.Thus the important
essential of Section 34 is that there must be simultaneous consensus of the minds of persons
participating in the criminal action to bring about the desired result. Such consensus can also be
developed on the spot.

Common intention:

The word 'common intention' implies a consensus of minds and participation of all the persons in
the group in the execution of offence. The acts committed by each of the participants may be
different. It may vary in character and magnitude, but they must be committed with the same
common intention.

Absence of common intention:

In the absence of common intention, the criminal liability of the persons in the group differ
according to the degree and extent of the individual's participation in the act. The plan or consensus
of mind to execute a crime need not be elaborate. Further, there need not be any particular interval
of time required for the purpose of committing the act. The plan may be decided suddenly, but it
is essential that all the persons in the group must have consented to such plan. In other words, each
of the persons in the group must be aware of the act to be committed and must have given his
consent.
The criminal act must be done in furtherance of a common intention: (Participation in the criminal
act). The criminal act must be done in furtherance of a common intention. The common intention
may be developed in the course of events and there need not be a strict pre-arranged plan. There
should be a common intention followed by a criminal act in furtherance of such common intention.
Further, the participation of the persons in the group in the criminal act is an essential condition
for joint liability. In addition, there must be some external act to indicate the common intention to
commit the offence. In other words, the accused must share the common intention to commit a
crime with others in the group and he must also have participated in its commission. The accused
must also be present on the spot at the time of the occurrence of the offence and must also take
part in its commission.

Test for conviction under Section 34:

A person can be convicted under Sec. 34 only if it is proved either by direct evidence or inference
that the accused and others have committed an offence in furtherance of the common intention of
the group.

Rishideo V State of UP:

The appellant Rishideo and his brother Ram Lochan and one Banslochan were convicted and
sentenced to death u/s 302 read with S. 34, I. P. C., for the offence of murder. Rishideo preferred
an appeal stating that Sec. 34, IPC has been wrongly applied to the facts of this case. Rishideo's
contention was that at that time commission of the offence, the appellant was merely standing at
the foot of the cot armed with his lathi' and of he did not give any blow to the victim and hence
Sec 34 IPC could not be applied in this case. The Supreme Court, however, held that "The very
fact that one of the co-accused had been armed with a 'gandasa' shows that the other two had clearly
known that the third co-accused was armed, and that he had also shared his intention to cause the
victim's death to the other two co-accussed. Hence the Supreme Court dismissed the appeal.

Distinction between same or similar intention and common intention:

The difference between same or similar intention common intention is very thin. To constitute
common intention, it is necessary. that the intention of each person must be known to all the others
in the group and is shared among them, whereas such knowing and sharing of intention is not
necessary in the case of same or similar intention.
R Vs. Pandurang (1955) SCR 1083:

The Supreme Court observed the following while interpreting Sec. 34.

• Each person is individually liable for whatever injury he has caused. However no one could
be vicariously held liable for the act of other persons.
• The prosecution must prove that the individual blow by the accused was a fatal one. Only
then, he can be convicted of murder provided he has clear intention to kill.
• . One should not confuse same or similar intention with common intention. The difference
between similar intention and common intention is often very thin, but the distinction is
real and substantial, and if overlooked will result in miscarriage of justice.
• . The plan to commit offence need not be elaborate and a long interval of time is not
required. It could arise and be formed suddenly.

But there must be pre-arranged and premeditated concert. It is not enough to have the same
intention independently of each other.

Mahboob Shah Vs. Emperor:

This is a leading case for 'act in furtherance of common intention'. Allahabad, the deceased went
by boat with his friends to cut reeds on the banks of river Indus. On their way Mohammad Hussain
Shah and Wali shah warned them not to collect reeds from the land. Ignoring this, the deceased
and his friend collected 16 bundles of reeds. While returning, Ghulan shah the nephew of
Mohammed Hussain Shah took away the reeds which made the deceased angry. He struck
Mohammad Hussain's nephew with a bamboo pole and the latter cried for help. Hence, Wali Shah
and Mahboob Shah came with loaded guns and shot at them. Wali Shah fired at the deceased who
died at once and Mahboob Shah fired at the friend causing him only injuries. Wali Shah absconded
but Mahboob Shah was convicted for murder under Sec. 302, but on appeal to the Privy Council,
he was acquitted because there was no evidence whether Wali Shah and Mahboob Shah ever
entered into a preplan to kill the deceased.

To invoke Section 34, it must be proved that the criminal act was done with consent in furtherance
of a pre-arranged plan.
DIFFERENCE BETWEEN ACT IN FURTHERANCE OF COMMON INTENTION (Sec.
34) AND COMMON OBJECT (UNLAWFUL ASSEMBLY) (Sec. 149):

1. The criminal act done by the offenders must be with a common intention. It is not common
object. (If an offence is done in furtherance of common object, it is separately dealt under Sec. 149
- Unlawful Assembly).

There is difference between Object and Intention. Intention exists in mind prior in time to the
commission of the offence. Object is the posterior result of the act. It is immediate in time to the
act.

2. Sec. 34 deals with acts done in furtherance of common intention only. The object immaterial
here. Even if good object is achieved by bad intention, it is punishable.

For e.g.: A person may steal bread to help starving family. Here the object is good, i.e., to help a
poor starving family. Even then his of stealing is punishable, as it is done with a bad intention. a
poor

3. Sec. 34 deals with joint offenders having a common intention to commit a crime. The offenders
must have done something in furtherance of this common intention. Sec. 34 is not an offence by
itself, and the punishment depends on nature and gravity of offence committed by them. In other
words, Sec. 34 is always read with other punishment sections. In such a case, each offender is
liable for the crime, as if he alone committed the crime.

In Sec. 149 unlawful assembly, there is no question of common intention at all. The members of
the unlawful assembly must have any one of the common objects specified in Sec. 148. Even if
one person does a criminal act, others are liable, although there was no common intention.
Unlawful assembly by itself is an offence. So, the difference between Sec. 34 and Sec. 149 depends
upon whether there is common intention or common object.

ACT DONE WITH CRIMINAL KNOWLEDGE OR INTENTION: (Sec. 35)

Every person who joins in an act, which is criminal only by reason of its being done with criminal
knowledge or intention is punishable for the act, as if the act were done by him with that knowledge
or intention.
E.g.: A caused grievous hurt to B with intent to murder him. C assists A in doing so. C can be
punished for attempt to murder only if he knew A's criminal intention and shared it with A, while
assisting him in his act.

Aloraham SK Vs. State:

More than two persons attacked a person, chased him and beat him to death. The accused were
liable under Sec. 304 read with Sec. 34 or Sec. 35.

OFFENCE PARTLY BY ACTS AND PARTLY BY OMISSIONS: (Sec. 36)

When several persons are engaged in criminal offence, the offence may be committed partly by
acts and partly by omissions.

E.g.: A and B join together with common intention to kill Z. They intentionally murdered him
partly by refusing to give food and partly by beating him. Both of them are punishable for the
offence of murder.

CO-OPERATION BY DOING ONE OF SEVERAL ACTS CONSTITUTING AN

OFFENCE: (Sec. 37)

If there is active intentional co-operation between the offenders in doing each one of the several
acts constituting an offence, then they are all held liable jointly.

E.g.: A and B agree to murder Z by severally and at different times giving him small doses of
poison. They do so according to the agreement and Z dies from the effects of the several doses of
poison so administered. Though their acts are separate, as each of them does an act by which death
is caused, both of them are guilty.

A jailer A, intending to cause death of a prisoner Z, does not supply him with food. Z becomes
very weak due to starvation. At this stage, A is dismissed or transferred and B another jailer takes
charge of 2. VB also does not give any food to Z but does not collude with A in doing so and
knowing it fully that his act will cause the death of Z. Z dies; here B is guilty of murder, but A is
only guilty of an "attempt to murder" as he did not collude with B.
DIFFERENT MENS REA' AND DIFFERENT 'PUNISHMENTS': (Sec. 38)

When a criminal act is done by a group of persons, with different types of mens rea, the punishment
for the offenders differ accordingly.

E.g.: A attacks Z under a sudden and grave provocation. B who is nearby, intending kill Z, gives
a knife to A and A kills Z under the provocation. A's guilt is only culpable homicide not amounting
to murder whereas B's guilt is the offence of murder.

Thus Sec. 34, 35, 36, 37 & 38 deal with joint liability whereas Sec. 149 deals with constructive
liability.

CONSTRUCTIVE LIABILITY: (Sec. 149)

In constructive liability, the offenders need not have common intention but only common object.

Definition:

Sec. 149 says "if an offence is committed by any member of an unlawful assembly, in prosecution
of the common object of that assembly, every person who at the time of committing that offence,
is a member of the same assembly, guilty of that offence".

UNLAWFUL ASSEMBLY: (Sec. 141)

It consists of five or more persons assembled to execute the common object of the assembly as
specified in this Section.

Essentials:

1. The assembly should have 5 or more persons.

2. They should have a common object for execution of which they have assembled.

3. The common object must be one amongst the five given below:

a. To overawe by criminal force the Central or State Government or the Legislatures or any public
servant.
b. To resist the execution of law or legal process. Eg. Resistance offered to a Court Amin in the
execution of a court decree.

c. Commission of any mischief, criminal trespass or other offence.

d. To take possession of any property or to deprive any person of any incorporeal right or to enforce
any right by criminal force.

It is combination of men for any one of the common objects which may lead to breach of peace or
disorder which is sought to be prevented for maintaining public peace. An assembly which was
not unlawful when it assembled may subsequently become an unlawful assembly.

Chikkaranga Gowda Vs. State of Mysore:

Two brothers who were sleeping in the house of a concubine were killed when a mob attacked and
set fire to the building, thereby killing the brothers. All the members of the Unlawful Assembly
were convicted under Sec. 302 read with Sec. 149 and Sec. 34.

Sheo Prasad Bhor @ Sri Prasad v State of Assam (Case No.: Appeal (CRL) 1165 of 2005:

Rehmat Ali was killed by three accused namely Manik Keot, Brajanath Kurmi and Jaharlal Kurmi
and the dead body was packed into a gunny bag and thrown into a river. All the accused were
convicted and sentenced to rigorous imprisonment for six years and to pay a fine of Rs.2000/-
each, in default to suffer further imprisonment for two years. In the appeal, the appellate court
confirmed the convictions of the accused and dismissed the appeals. The court observed "small
contradictions and omissions are natural in narration of events ie., when the accused attacked the
deceased".

The court has to only assure that there should not be over implication.

If it is found that one of them was a member of the unlawful assembly and that the unlawful
assembly as saulted the deceased which ultimately caused the death of the deceased, then all who
were members of the un lawful assembly can be held liable".

DACOITY: (Sec. 396)

This Section also deals with Constructive Liability. When five or more persons commit dacoity,
even if one person commits murder, all of them are liable for it.
THEORIES OF PUNISHMENT

INTRODUCTION:

Punishment is the suffering in person or property inflicted by the State on the offender under the
established criminal law. The person who violates the rules of the society is inflicted punishment,
in order to maintain peace and order. The kind and amount of punishment varies depending on the
nature of offence and personality of the offender.

i. Retributive theory
ii. Deterrent theory
iii. Preventive theory
iv. Reformative theory

THEORIES OF PUNISHMENT:

There are different theories put forward regarding the aim, purpose and object of punishing an
offender.

The following are the four important theories:

RETRIBUTIVE THEORY:

This theory involves four concepts:

1. Punishment is the end result of offence.

2. Punishment is inflicted on a person for the only reason that he has committed a crime.
3. There must be restoration of moral order in the society which is possible only by punishing
the offender in the same manner as of the victim.
4. Punishment by revenge utilizes the evil effect of crime.

Everyone should get punishment according to his deeds and must suffer for his wrong doing,
though by such punishment of the person, the society is not benefited in any way. The supporters
of this theory are Immanuel Kant, Plato, Hegel and others.
In ancient days, the penology was of retributive nature. The criminals were got rid of for the good
of the community. Their attitude was that of vengeance of a tooth for a tooth' and 'an eye for an
eye'.

Salmond says that retribution is not a remedy for the crime done by the offender. On the other
hand, it only aggravates the offence, by committing the same act on the offender by way of
revenge. Here the punishment inflicted on the offender by revenge adds pain and suffering to the
misery already occasioned by the offence of the criminal. As the aim of this theory is not justified,
it is criticised by many jurists.

Sir James Stephen says that punishment of the offender by committing the same act on him is
only a revenge after approval by law and society. This method is only to avoid private vengeance
by illegal means by the affected party or their relatives.

According to Kant, an offender committing the evil must suffer in the same way.

Criticism:

Mr. Justice Holmes says that the spirit of vengeance should not be encouraged. Retribution is
only a subsidiary purpose served by punishment and it is not the only purpose.

PREVENTIVE THEORY:

The object of criminal justice is to prevent the commission of crimes. So according to this theory,
law inflicts certain pains on citizens, if they do certain harmful acts. Thus the aim of law is that
the citizens should not commit such wrongs. If they continue to do so, then it inflicts the pains so
that such threats will make others not to commit such wrongs. According to this theory, the purpose
of punishing a criminal is to deprive him temporarily or permanently of the power to repeat the
offence. During the period of detention, a prisoner is prevented from committing further crimes
and if the crime is of a very serious nature, he is permanently prevented from repeating it by putting
him to death. Thus, this theory is of the view that the culprit is eliminated by death or detained by
imprisonment, so that further commission of crimes by him is prevented. This theory is criticised
by many jurists that it does not look into the criminal, but only on the crime. It only prevents the
criminal from committing any more crimes, but it has no object of reforming the criminal.
DETERRENT THEORY:

The object of this theory is to inflict deterrent (severe) punishment on the offender and thus make
him an example to warn others as to commit similar offences and if they do so they will also have
to face the same consequences. Thus this theory advocates that the hardened criminal must be
severely punished. The punishment should be so drastic that it will act as a terror in the minds of
the people and hence they will not attempt doing such offences. If deterrent punishment is the way
to curb crimes, then it is really very cruel. It forgets that the fear created by even the most terrible
punishments will be blunted by long familiarity with that type of punishment. There are instances
where people were unwilling to co-operate with the State in carrying out deterrent punishment to
the offender. long run will become immune even to severe This theory has been criticized as people
in the punishments. Further, like other theories it looks only into the punishment aspect and not at
the criminal.

REFORMATIVE OR REHABILITATIVE THEORY:

Punishment to a criminal. Society must cure a criminal According to this theory, death is not a
fitting and not kill him. Criminals must be sent to prison only to get transformed as good citizens
by physical and moral trainees and not for further degradation. The purpose of punishment is to
reform the character of the wrong doer by making him do what is right and not to do what is wrong.
The legitimate object of punishment is to reform, educate and discipline the criminal. Crime is
treated as a disease which needs to be cured and not to be punished. Criminal justice should be a
means of social and ethical education. The Judge is like a doctor who selects his remedy after
diagnosing the disease of the patient. But, the reformation of a criminal, though important, should
not be magnified, because crimes would increase exceedingly unless it is repressed by law. So,
crime cannot be always treated as a disease. Further, in practice, it has no effect on hardened
criminals.

KINDS OF PUNISHMENTS:

In olden days, 'deodand' was a form of punishment which was later abolished in Britain.

DEODAND: In law, deodand means an object or instrument which becomes forfeited because it
has caused a person's death. The English common law, deodand traces back to the 11th century
and the British Parliament abolished it in 1846. A chattel (i.e. some personal property such as tubs,
horses, carts, boats, stones, trees, etc.,) was considered as a deodand to be forfeited to the crown,
if it had caused the death of a human being. The crown sold such chattels and applied the profits
for some pious use. In practice, the juries who decided that a particular animal or object was a
deodand also appraised its value and made the owners pay a fine equal to the value of the deodand.
If the owner could not pay the deodand, then his township was held responsible for such payment.
The Fatal Accidents Act 1846, also known as Lord Campbell's Act was enacted which abolished
deodands.

VARIATION IN PUNISHMENTS (LIABILITY) UNDER IPC:

IPC provides various punishments for various offences. In fixing the nature and quantum of
punishment, the Court takes into consideration the nature and gravity of offence, the degree of
mental intention (mens rea), means and modes of committing an offence, the circumstances, age
and antecedents of the offender, etc.

Sec. 53 provides five kinds of punishments which can be inflicted on the offender.

The following are the kinds of punishments:

1. Death penalty

2. Imprisonment for life

3. Imprisonment (Rigorous, Simple and Solitary)

4. Forfeiture of property

5. Fine

1. DEATH PENALTY: (CAPITAL PUNISHMENT)

It is the extreme penalty under the Indian Penal Code. In the earlier days, it was known as death
sentence and even for offences like theft and forgery, the punishment of death sentence was
awarded. Now, the death sentence is almost abolished and awarded for offences against the State
and in rarest of rare cases, ie., in cases of murder executed in the most cruel manner.
2. IMPRISONMENT FOR LIFE:

Next to Capital punishment, life imprisonment is a grave punishment. Life imprisonment can be
given for a term not exceeding 14 years. The State can also reduce the period of punishment due
to good conduct, etc. This punishment is given for most of the serious offences like Murder,
Culpable homicide, aggravated forms of grievous hurt, robbery, dacoity, being a thug, etc.

3. IMPRISONMENT:

Imprisonment is the confinement of a person in a prison by way of punishment. It need not be in

any

prescribed place, but in any place. The individual of the person is curtailed.

Extent of punishment:

Wide discretion has been given to the Courts in imposing punishments. The Courts are empowered
to award different punishments within the maximum limits of punishment prescribed for different
offences. The punishment varies according to the circumstances in which the offence is committed.
The Court, while awarding the sentence must take into account the nature of the offence, the
circumstances in which it was committed, the antecedents of the criminals, etc.

Imprisonment may be of three types:

a. Simple imprisonment

b. Rigorous imprisonment

c. Solitary confinement

In simple imprisonment, the offender is subjected only to light work. (E.g.: Sec. 168, 169, 172,
173, 174, 175 etc)

subjected to hard labour like grinding corn, cutting fire In rigorous imprisonment, the offender is
wood, etc.

It is awarded in these cases -

1. Giving or fabricating false evidence with intent to procure conviction of capital offence.
2. House trespass to commit an offence punishable with death.

For majority of offences, the I.P.C has provided terms and period of imprisonment.

Solitary Confinement: (Limit of solitary confinement)

It is an aggravated form of imprisonment. The convict is imprisoned without any companion in a

separate room. This should not exceed more than three months on the whole and should not exceed
14 days at a time. It must be imposed at intervals. The period of solitary confinement is reduced
proportionately according to the duration of imprisonment. A Magistrate of the first class only can
pass a sentence as follows:

Period of imprisonment Solitary confinement

Below 6 months. One month

Between 6 months and one year - 2 months

Exceeding one year- 3 months

It cannot be awarded where imprisonment is not part of the sentence or where imprisonment is
simple.

FORFEITURE OF PROPERTY:

It is of ancient British origin but the IPC has abolished it in 1921. Only three Sections prescribe
this type of punishment now. They are Sec. 126, 127 and 169.

FINE:

It is a financial penalty imposed on the offender, in the case of less serious offences. Sec. 63 lays
down that in case where no specific amount of fine is fixed, the amount of the fine is unlimited but
should not be excessive. The imprisonment in default of payment of fine is simple and as follows:

Fine Imprisonment

1. Rs. 50/- or less Two months or less

2. Rs. 100/- or less Four months or less

3. Above Rs. 100/ Six months or less

Fine may be imposed along with imprisonment for offences like assault, theft, bribery in election,
etc.

SUBSTITUTE PUNISHMENT:

In the following two cases, one form of punishment is awarded and another form of punishment is
inflicted.

1. In the case of commutation of sentences.

2. Where imprisonment is awarded in default of payment of fine. but is awarded only as a penalty
for non-payment of fine. In this case, imprisonment is not a substitute for fine, So, he is liable to
pay fine and shall be collected within six years after the passing of the sentences. If any property
is acquired by him within this period, the fine is collected from the property. Even after his death,
his property will be used for discharging the debt of fine.

COMMUTATION OF SENTENCES: (Sec. 54, 55 & 55-A)

"Commute" means cutting down or reducing. The following sentences may be reduced only by the
Government:

1. In the case of sentences of death, may be reduced to any form of punishment, but the consent of
the offender is not needed for such commutation. Such power of commutation in the case of death
sentence lies with the Central Government.

2. In a case of sentences of imprisonment for life, it may be commuted to simple imprisonment or

rigorous imprisonment, for not more than 14 years. In these cases, the General Government or the
State Government may commute the sentence as the case may be.

IMPRISONMENT IN DEFAULT OF FINE: (Sec. 64 to 70)

Certain offences are punishable imprisonment as well as fine, some with imprisonment with or
fine and some with fine only. In case of an accused not in a position to pay fine, he is awarded
imprisonment to which he may have been sentenced.
E.g.: If the Court imposes two sentences of imprisonment and also fine, the two terms of
imprisonment may run concurrently, but the terms of imprisonment in default of fine runs
consecutively.

The Courts may follow the prescribed scale for specifying the term of imprisonment in default of
fine. In the case of an offence punishable with imprisonment as well as fine, the imprisonment in
default of fine shall not exceed one fourth of the term of imprisonment fixed for the offences.
Imprisonment in default of payment of fine shall terminate as soon as the fine is paid and it shall
be proportionate to the amount of fine paid. The unpaid fine is levied at any time within 6 years of
passing of the sentence or expiration of the sentence which ever is later. Death of the offender does
not discharge his property from liability and even after full expiration of the sentence, the fine may
be realised.

ASSESSMENT OF PUNISHMENT: (Sec. 71)

If an offence -

a. is made up of several offences, or

b. if an offence falls under two or more definitions, or
c. if in several acts, one or more of such acts constitute an offence but when combined
constitute a different

offence, then the punishment shall be for more than one offence.

2. If there is more than one punishment, the total punishment should not exceed the punishment
provided for the graver offence.

3. If several offences constitute one offence, the offender cannot be convicted separately for two
distinct offences.

4. When a single transaction gives rise to several offences, the offender is punishable separately.

5. If the same facts constitute different offences, an accused cannot be punished at the same time.

6. When judgment is given that a person is guilty of one of several offences specified in the
judgment, and it is doubtful for which of the offences he is guilty, the offender shall be punished
for the offence for which the lowest punishment is provided, if punishment is not provided for all
the offences.

ENHANCED PUNISHMENT: (Sec. 75)

If any person previously convicted for offences relating to Government stamps and coins or
property punishable with simple or rigorous imprisonment for three years or more, again commits
against the same offence punishable as above, he shall be punishable with imprisonment for life
or imprisonment which may extend to ten years. It is not a rigid and inflexible rule, but is inflicted
taking into consideration the circumstances of each case. Even the Magistrate can award a lesser
sentence than that given on a previous occasion, in certain circumstances.

For new offenders, the prison shock will hurt. If there is excess imprisonment depriving the legal
rights of a prisoner, he can seek remedy through a writ of Habeas Corpus.

POWER OF PARDON UNDER THE INDIAN CONSTITUTIONAL LAW:

The term 'pardon' means remission of a punishment. It may be defined as an act of grace by which
the accused is excused from the penalty. It cannot be demanded as a matter of right. The executive
authorities have powers to grant pardon when the prescribed penalties are severe. The President of
India under Art. 72 and the Governors of the States under Art. 161 have the power to grant pardon
(absolute or conditional), reprieve (temporary suspension of punishment fixed by law), respite
(postponement to a future date of the execution of a death sentence), remission (to reduce the
amount of punishment without changing the character of the punishment), or to suspend, remit or
commute the sentence of any person convicted of any offence.The President of India has the
exclusive power to grant pardon, reprieve and respite in all cases where the sentence is a sentence
of death, and both the President and the Governors have concurrent powers in respect of
suspension, remission and commutation a sentence of death. The power of pardon is purely
discretionary and there is no obligation on the part of the President Governor to hear the parties
concerned before rejecting or granting a mercy petition.

Kehar Singh Vs. Union of India:

The Supreme Court held that the President's power is beyond the purview of the Court.
NEW FORMS OF PUNISHMENT (RELEVANCY OF PUNISHMENTS):

The existing punishments are not wholly relevant to reform the criminal. Jurists have expressed
that the existing system of punishment does not reform the criminal and hence they have suggested
new forms of additional punishments to curb the crime rate. Such punishments have more
psychological, social and moral impacts on the criminals.

The new forms of punishments suggested are as follows:

1. Public censure

2. Disqualification to contest in election and to hold public office

3. Community service

4. Externment

5. Compensation to victims of crime

PUBLIC CENSURE:

Censure means warning by the State that in case of recurrence, the offender will be punished.
Public censure or social censure is one of the methods of punishments prescribed in countries like
USA, Australia, Columbia and other European Countries. Censure is often inflicted for offences
like white collar crimes, economic offences, adulteration, etc. The main purpose of censure is that
it has more deterrent effect on the offender due to the social stigma.

DISQUALIFICATION TO CONTEST IN ELECTION AND TO HOLD PUBLIC OFFICE:

The offender is disqualified to hold any public office or/and to contest any public election for
certain period of time. Sec. 8 (3) of the Representation of the People Act, 1951 disqualifies a person
convicted of an offence for a period of two years or more to contest an election for a period of six
years. Further, the candidates standing in election must disclose their criminal antecedents, assets
and liabilities.
COMMUNITY SERVICE:

Community service is to forced physical labour of the offender as a punishment for the offence
committed by him. The accused is compelled to work in a special corrective labour institution in
his locality. The accused is paid remuneration for the work done and the period of such physical
labour may vary from one month to one year.

EXTERNMENT:

Here by Court order, the accused is sent out of his place of residence to a new place for a specified
period. By the change of place, he loses his bad companionship, and he is exposed to the better
and crime free environment, which has an impact in changing his criminal character. This is more
applicable to antisocial, hardened and habitual criminals.

COMPENSATION TO VICTIMS OF CRIME:

Here, the victim is paid compensation by the offender. In criminal cases, State through Police takes
action and there is no direct remedy to the victim. In the case of murder of the head of the family,
the victims are the dependent family members whose financial loss due to the death of their head
of the family need be financially compensated. Section 357 Criminal Procedure Code, 1973 has
empowered the Court to award compensation to the victims of crimes in very limited cases.

For e.g.:

1. As per Sec. 357 (1) Cr.P.C., the power to award compensation is confined only to cases where
the Court imposes fine and the amount of compensation is also limited to the fine amount only.
The Court is empowered to order payment of expenses or compensation out of the fine, in four
instances -

a. meeting the reasonable expenses of prosecution

b. compensation to the victim for the loss or injury caused by an offence

c. compensation to persons entitled to damages under the Fatal Accidents Act, 1855 and

d. compensation to a bonafide purchaser of property, if the person is sentenced for theft, criminal
misappropriation, cheating, etc.
e. The higher judiciary has at times provided compensation to he victims of crime of custodial
violence, sexual assault, rape, illegal detention, etc., as under Article 21 of the Constitution.

2. As per Sec. 357 (3) Cr.P.C., compensation can be awarded only if a sentence of fine is not
imposed.

3. Compensation not exceeding Rs. 1,000/- is paid to a person if he is arrested without sufficient
grounds.

4. The costs of prosecution incurred by the complainant in non cognizable offences is ordered to
be paid by the accused. Otherwise, the accused must undergo simple imprisonment not exceeding
thirty days.